Committee Reports > List of Committees > Joint > 2006 > Committee on Finance and the Public Service > Report No. 07 - Review under Section 32 (2) of certain provisions under the Freedom of Information Act 1997

Appendix 3

Reports from Government Ministers under Section 32(3) of Freedom of Information Act 1997

21 May 2004

Mr. Martin Groves

Clerk to the Joint Committee on Finance and Public Service

Leinster House

Dublin 2

Dear Mr. Groves

In accordance with Section 32(3) of the Freedom Of Information Acts please find attached for the attention of the Joint Committee on Finance and Public Service. this Department’s report on enactments containing secrecy provisions which are of relevance to this Department.

Yours sincerely,

John Gillespie

Assistant Secretary

Department of Agriculture and Food 21 May 2004

Enactments containing secrecy provisions - i.e. they authorise or require the non-disclosure of records

Items 1 - 4:These enactments are already included in Schedule 3 of the FOI Act.

Item 5:This secrecy provision should be allowed to continue in force as it precludes disclosure only where public policy or the fundamental interest of the State would be prejudiced. As this provision concerns only the release of information to the EU Commission/Agencies and other Member States, addition to Schedule 3 of the FOI Act would serve little practical purpose.

Item 6:Under the Provisions of EU Directives 1999/45/EC concerning the approximation of the laws, regulations and administrative provisions of the Member States concerning the classification, packaging and labelling of dangerous preparations and 91/414/EEC concerning the plant protection products on the market, chemical companies are required to submit detailed dossiers relating to the products and their constituent active chemical substances which they are seeking to have placed on the market.

There are provisions for confidentiality under Section 11 of S.I. No. 83 of 2003 entitled “European Communities (Authorisation, Placing on the Market Use and Control of Plant Protection Products) Regulations 2003” which implements the provisions of Article 14 of Council Directive 91/414/EEC.

This secrecy provision should not be added to Schedule 3 of the FOI Act as Council Directive 91/414/EEC applies until it is amended.

25 May 2004

Mr. Martin Groves

Clerk to the Joint Committee on Finance and the Public Service

Leinster House

Dublin 2.

Dear Mr. Groves,

I am writing to you regarding the Ministerial Reports required under Section 32 (3) of the Freedom of Information Act 1997.

1. Enactments currently included in Third Schedule

The following enactments, which are the responsibility of the Department, are included in the original Third Schedule to the FOI Act:

The Minister is satisfied that the above provisions should continue to be listed in the Third Schedule to the FOI Act.

As regards the “secrecy” provisions contained in the above enactments, they are standard provisions to protect against unauthorised disclosure of information and the Minister sees no reason, at this stage, to amend or repeal them.

2. Enactments containing secrecy provisions and amending the FOI Act to allow for inclusion of secrecy provisions in the Third Schedule:

The National Tourism Development Authority Act 2003 contains a secrecy provision in section 22. Section 29 of the same Act amends the FOI Act to allow for the inclusion of section 22 in the Third Schedule to the FOI Act.

The Arts Act 2003 contains a secrecy provision in section 20. Section 27 of the same Act amends the FOI Act to allow for the inclusion of section 20 in the Third Schedule to the FOI Act.

The Minister is satisfied that the above provisions should continue to be listed in the Third Schedule to the FOI Act.

As regards the secrecy provisions contained in the above enactments, they are standard provisions to protect against unauthorised disclosure of information and the Minister sees no reason, at this stage, to amend or repeal them.

3 Enactments not included in Third Schedule

Irish Sports Council Act, 1999, Section 21

The inclusion of section 21 of the Irish Sports Council Act 1999 in the Third Schedule to the FOI Act was recommended as part of the section 32 (3) report from the former Department of Tourism, Sport and Recreation to the Joint Committee in 1999. The Minister continues to support that recommendation.

As regards the “secrecy” provision itself, the Minister considers that the standard protection against unauthorised disclosure of information is particularly necessary to enable the Irish Sports Council to deal with sensitive issues, such as drug testing under its Anti-Doping remit, and he does not have any proposals, at this stage, to amend or repeal the provision.

I apologise for the delay in submitting the report.

Yours sincerely

Philip Furlong

Secretary General

2 June, 2004

Mr. Martin Groves,

Clerk to the Joint Oireachtas Committee on

Finance and the Public Service,

Leinster House,

Dublin 2.

Dear Mr. Groves,

I enclose herewith a Report to the Joint Oireachtas Committee on Finance and the Public Service from this Department entitled “Review of the Secrecy Provisions in accordance with Section 32 of the Freedom of Information Acts, 1997 and 2003.”

This Report is being furnished in accordance with the provisions of Section 32 (3) of the Freedom of Information Acts, 1997 and 2003.

The previous Report in this regard was laid before the Houses of the Oireachtas on 5 May 1999.

Copies of this Report are being sent to the Clerks of Dáil Eireann and Seanad Eireann for laying before their respective Houses, in accordance with Section 4 of the Freedom of Information Acts, 1997 and 2003, and to the Information Commissioner.

Yours sincerely,

John Wynne

FOI Unit

c.c. Information Commissioner

Department of Communications, Marine and Natural Resources

Report to the Joint Oireachtas Committee on Finance and the Public Service entitled

“Review of Secrecy Provisions in accordance with Section 32 of the Freedom of Information Acts, 1997 and 2003”.

1.In accordance with Section 32 (3) of the Freedom of Information Acts, 1997 and 2003, the Department of Communications, Marine and Natural Resources has reviewed the provisions of all enactments that authorise or require the nondisclosure of a record (other than those which are specified in column 3 of the Third Schedule of the Act) in order to assist the Joint Committee on Finance and the Public Service to ascertain whether, with regard to the purposes and spirit of the Acts, any such provisions should be amended, repealed or retained, or (2) included in column (3) of the Third Schedule.

2.Eight pieces of legislation containing a provision, which authorises or requires the nondisclosure of a record, are currently listed in the Third Schedule. The secrecy provisions of these enactments are broad in their scope and the Department recommends that in line with the treatment of all other secrecy provisions they should be retained in the Third Schedule. Four of these enactments automatically included the legislation in the column (3) of the Third Schedule.

3.The Department has identified a further two pieces of primary legislation, containing secrecy provisions which authorise or require the non disclosure of a record. The Department recommends that these should be added to the Third Schedule to the Acts. These are as follows:

(1) Section 32 of the Turf Development Act, 1998

The secrecy provisions provided for in Section 32 of this Act (copy attached) are so broad in scope that they could incorporate general information held by the public body whether secret or not. It is recommended that in line with the treatment of all other general secrecy provisions, Section 32 of the Turf Development Act, 1998 should be included in the Third Schedule.

(2) Section 19 of the Sustainable Energy Act, 2002

This provision (copy attached) is designed to prevent the unauthorised disclosure of information obtained while performing duties on behalf of Sustainable Energy Ireland. This provision is a general secrecy provision similar to those already listed in the Third Schedule and should be included.

4.Both Section 30 of the Fisheries (Amendment) Act, 1997 and Section 18 of the Merchant Shipping (Investigation of Marine Casualties) Act, 2000 (copies attached) contain a secrecy provision designed to prevent the unauthorised disclosure of information obtained while performing duties on behalf of the Aquaculture Licences Appeal Board (ALAB) and the Marine Casualty Investigation Board (MCIB). These Boards are not presently listed as public bodies for the purposes of the FOI Acts.

12 January 2005

Mr. Martin Groves,

Secretary to the Oireachtas Joint Committee on Finance and Public Service,

Dáil Éireann,

Dublin 2.

Dear Mr. Groves,

Please find herewith this Departments report under Section 32(6) of the Freedom of Information Acts 1997 & 2003. The delay in furnishing this report is regretted.

Those enactments which confer functions on the Minister for Community, Rural & Gaeltacht Affairs, and provisions therein which authorise or require the non-disclosure of records are as follows:

A. Údarás na Gaeltachta

Section 15(1) of this Act requires that:

“A person shall not, without the consent of an tÚdarás disclose any information obtained by him while performing duties as a member of an tÚdarás, as a member of the staff of an tÚdarás or as an advisor or consultant to an tÚdarás/

This provision is specified in Column (3) of the Third Schedule to the Freedom of Information Acts 1997 & 2003 and this Department see no reason to change this.

B. Dormant Accounts Acts

1.Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

(a) The Dormant Accounts Amendment Bill 2004, published on 24 June 2004, provides for the repeal of Section 40 of the Dormant Accounts Act 2001. It was decided that given the changed functions and role of the Board, this particular section was no longer required.

(b) - (c) The provisions in section 26 (2) of the Dormant Accounts Act 2001 and Section 24 (2) of the Unclaimed Life Assurance Policies Act, 2003, provide for legal professional privilege, ie it allows financial institutions etc. to refuse to release information to duly appointed inspectors on the grounds that such information is protected from release in court on the grounds of legal professional privilege.

It is intended that section 26(2) of the Dormant Accounts Act 2001 and 24(2) of the Unclaimed Life Assurance Policies Act, 2003 should be allowed to continue in force as they contain provisions similar to section 22 of the FOI Act. Section 22 of the FOI Act deals with exemptions on the grounds of legal professional privilege.

2. Whether the provision should be included in the Third Schedule of the FOI Act (i.e. overruled by the provisions of the FOI Act, but remain in force in circumstances when FOI does not apply).

(i) See 1(a) above

(ii) See 1 (b) - (c) above, these provisions should not be included in the Third Schedule of the FOI Act.

3. Reasons for the Opinion outlined above. (Note that, if you are recommending that the secrecy provision remain unaltered and/or not subject to FOI, it is important to give a full justification which can withstand the scrutiny of the Joint Committee and the Information Commissioner).

(i) See 1(a) above.

(ii) See 1 (b) - (c) above

C. Western Development Commission Act 1998

* Section 18(1) A person shall not disclose confidential information obtained by him or her while performing duties as a member or member of the staff of, or an adviser or consultant to, the Commission unless he or she is duly authorised by the Commission to do so.

(2)A person who contravenes subsection (1) shall be guilty of an offence.

(3)In this section “confidential information” includes—

(a)information that is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description, and

(b)proposals of a commercial nature or tenders submitted to the Commission by contractors, consultants or any other person. Prohibition of unauthorised disclosure of confidential information.

1. Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force

2. Whether the provision should be included in the Third Schedule of the FOI Act (i.e. overruled by the provisions of the FOI Act, but remain in force in circumstances when FOI does not apply).

The provision should be included in the Third Schedule.

3. Reasons for the Opinion outlined above. (Note that, if you are recommending that the secrecy provision remain unaltered and/or not subject to FOI, it is important to give a full justification which can withstand the scrutiny of the Joint Committee and the Information Commissioner).

Inclusion in the third schedule will give WDC the same status as other public bodies subject to FOI. However, it is considered important that the secrecy provision should otherwise continue to apply to “confidential information” as defined in section 18 of the WDC Act (above); it will be noted that the provision in this case relates to information held by board members and staff of, or advisors or consultants to, the Commission.

Colm Treanor

Principal Officer

An Roinn Gnothaí Pobail, Tuaithe agus Gaeltachta

21 May 2004

Mr. Martin Groves,

Clerk to the Committee,

Joint Committee on Finance and the Public Service, Leinster House,

Dublin 2.

Freedom of Information Report under Section 32 of the Acts.

Dear Mr. Groves,

I am directed by the Minister for Defence to refer the report due under Section 32 (3) of the Freedom of Information Acts 1997 and 2003. I wish to report to you, for the information of the Committee, that there is no legislation coming under the remit of this Department to which this Section applies.

In this Department’s previous report to the Committee (submitted on 27^th April 1999), the Committee’s attention was drawn to the fact that the Freedom of Information Act did not apply to the findings and recommendations of a Military Court of Enquiry.

In May 2000, the Information Commissioner expressed the view that Section 46 of the FOI Act does not grant a blanket exemption to Military Courts of Inquiry but only to records held by the service tribunal, not to all copies of such records. The Commissioner, while accepting that by virtue of Section 32, a Head may refuse a request for disclosure by relying on the provisions of paragraph 11(2) of Defence Forces Regulation A.5, nevertheless recommended that such provision be lifted and that the Department and the Defence Forces should rely on other general exemptions contained in Section 24 of the FOI Act. This recommendation has now been implemented and the provisions of paragraph 11(2) of DFR A.5 have been amended appropriately.

Yours sincerely,

Seamus Jackson

Principal Officer

Planning and Organisation Branch

Clerk of the Joint Committee on Finance and the Public Service

Leinster House

Kildare Street

Dublin 2

21 June 2004

Second Ministerial Report
on enactments relating to non-disclosure of documents

Section 32(3) of the Freedom of Information Act 1997

I am directed by the Minister for Education and Science to enclose a copy of the Second Ministerial Report on enactments relating to non-disclosure of documents, pursuant to section 32(4) of the Freedom of Information Act 1997.

Michael Hughes,

Freedom of Information Officer.

Second Ministerial Report on enactments relating to non-disclosure of documents

Section 32(3) of the Freedom of Information Act 1997

Second Ministerial Report on enactments relating to non-disclosure of documents

Section 32(3) of the Freedom of Information Act 1997

Introduction

Provisions authorising or requiring non-disclosure of records in enactments which confer functions on the Minister for Education and Science or on a public body in relation to which functions are vested in the Minister for Education and Science are as follows:

•Section 53 of the Education Act 1998

•Sections 27, 28, 31, 33 and 34 of the Commission to Inquire into Child Abuse Act 2000

•Sections 28, 30 and 31 of the Residential Institutions Redress Act 2002

Education Act 1998

1.Specify, as respects any enactments that confer functions on that Minister of the Government or on a public body in relation to which functions are vested in that Minister of the Government, any provisions thereof that authorise or require the non-disclosure of a record. (Section 32(3)(a) FOI Act, 1997)

Section 53 of the Education Act 1998 allows the Minister for Education and Science to refuse access to information which would permit the compilation of information on the overall performance of a school in an examination or on comparative overall results of a number of schools. The text of the section provides as follows:

53.—Notwithstanding any other enactment the Minister may—

(a)refuse access to any information which would enable the compilation of information (that is not otherwise available to the general public) in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein, including, with-out prejudice to the generality of the foregoing—

and

(b)refuse access to information relating to the identity of examiners.

2.Specify whether, in the opinion of that Minister of the Government and (where appropriate) any such public body, formed having regard to the provisions, purposes and spirit of this Act—

(i)any of the provisions referred to in paragraph (a) should be amended, repealed or allowed to continue in force, or

(ii)a reference to any of them should be included in the said column (3), and outlining the reasons for the opinion. (Section 32(3)(b))

Section 53 of the Education Act should continue in force. The provision should not be amended, repealed or a reference to it included in column (3) of the Third Schedule to the Act. The intention of this provision is to prevent the creation of crude “league tables” on school performance. The provision was enacted after the passing of the Freedom of Information Act 1997, and, therefore, the restriction on the Freedom of Information Act was accepted by the Oireachtas in its passing of the Education Act.

Commission to Inquire into Child Abuse Act 2000

1.Specify, as respects any enactments that confer functions on that Minister of the Government or on a public body in relation to which functions are vested in that Minister of the Government, any provisions thereof that authorise or require the non-disclosure of a record. (Section 32(3)(a) FOI Act, 1997)

Section 27 of the Commission to Inquire into Child Abuse Act 2000 prohibits, subject to limited exceptions, the disclosure of information provided to the Commission’s Confidential Committee. The text of the section provides as follows:

27.—(1) Subject to the provisions of this section but notwithstanding any provision of, or of an instrument made under, a statute or any rule of law, a person (including the Confidential Committee) shall not disclose information provided to the Confidential Committee and obtained by the person in the course of the performance of the functions of the person under this Act.

(2) A person referred to in subsection (1) (“the person”) shall disclose information so referred to—

(3) Information referred to in subsection (1) shall, if so ordered by a court in connection with proceedings before it for the judicial review of a decision of the Confidential Committee, be disclosed by a person referred to in that subsection to the court if, and to the extent only, that the court is satisfied that such disclosure is necessary in the interests of justice; and any disclosure pursuant to this subsection shall not identify, or contain information that could lead to the identification of, persons the subject of abuse in childhood.

(4) Proceedings referred to in subsection (3) shall be beard otherwise than in public.

(5) Documents provided to the Confidential Committee or prepared by it (other than a report under section 16), or prepared by a person for it in the course of the performance of his or her functions as a member of that Committee, a member of the staff of the Commission, or an adviser, shall not constitute Departmental records within the meaning of section 2(2) of the National Archives Act, 1986.

(6) A person who contravenes subsection (1) shall be guilty of an offence.

Section 28 provides that a person cannot be obliged by law to disclose information provided to the Commission or the Investigation Committee but a disclosure must be made to An Garda Síochána in certain circumstances. The text of the section provides as follows:

28.—(1) Subject to subsection (2) but, notwithstanding any other provision of, or of an instrument made under, a statute or any other rule of law, a person (including the Commission and the Investigation Committee) shall not be required to disclose information provided to the Commission or the Investigation Committee and obtained by the person in the course of the performance of the functions of the person under this Act.

(2) A person referred to in subsection (1) shall disclose information so referred to—

Section 31 provides that an order for discovery will not be made against the Commission or the committees for discovery in legal proceedings to which they are not a party. The section provides as follows:

31.—(1) A court shall not make an order against the Commission or a Committee in proceedings to which the Commission or a Committee is not a party for the discovery, inspection, production or copying of—

(2) Where a document is in the custody of a person pursuant to section 7(6), other than the person who produced or sent it to the Commission or a Committee, a court shall not make an order for the discovery, inspection, production or copying of the document against the first-mentioned person.

(3) Where—

the document shall be deemed to be in the control or procurement of the sender and the Commission shall make it available to him or her.

Section 33 gives an exemption from the Data Protection Act 1988 for data in the possession of the Commission and a Committee. In the case of the Confidential Committee, the exemption is permanent and extends to any data given into the custody of a person after the dissolution of the Committee. The section provides as follows:

33.—Section 4 of the Data Protection Act, 1988, does not apply to personal data provided to the Commission or a Committee while the data is in the custody of the Commission or a Committee, or in the case of such data provided to the Confidential Committee, of a body to which it is transferred by the Commission upon the dissolution of the Commission.

Section 34 restricts the application of the Freedom of Information Act as regards records held by public bodies where access could prejudice the effectiveness of the Commission. In reaching an opinion on the extent to which prejudice could be caused or where the balance of the public interest lay, the public body head must consult with the Chairperson of the Commission. Where records of the Confidential Committee are transferred to a public body for safekeeping on the dissolution of the Commission, access is not to be given to them under the Act. The section provides as follows:

34.—(1) A head may refuse to grant a request (including a request made before the passing of this Act) under section 7 of the Freedom of Information Act, 1997 (“a request”), if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of the performance of its functions by the Commission or a Committee or the procedures or methods employed for such performance.

(2) Subsection (1) does not apply in relation to a case in which in the opinion of the head concerned the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.

(3) Before forming the opinion referred to in subsection (1) or (2), a head shall consult with the Chairperson.

(4) A head shall refuse to grant a request in relation to a record held by the Confidential Committee and transferred to a public body by the Commission upon the dissolution of the Commission.

(5) In this section “head”, “public body” and “record” have the meanings assigned to them by section 2 of the Freedom of Information Act, 1997.

2.Specify whether, in the opinion of that Minister of the Government and (where appropriate) any such public body, formed having regard to the provisions, purposes and spirit of this Act—

(i)any of the provisions referred to in paragraph (a) should be amended, repealed or allowed to continue in force, or

(ii)a reference to any of them should be included in the said column (3), and outlining the reasons for the opinion. (Section 32(3)(b))

Sections 27, 28, 31, 33 and 34 of the Commission to Inquire into Child Abuse Act should continue in force. These provisions should not be amended, repealed or a reference to them included in column (3) of the Third Schedule to the Act.

In relation to section 27, since the Confidential Committee hears evidence of abuse only from people who do not wish to submit to the investigation process and whose evidence will not be challenged or inquired into, the section places a necessary prohibition on any disclosure of information provided to the committee. Section 28 provides for much less restriction on the disclosure of information to the Commission and the Investigation Committee than the restrictions in respect of the Confidential Committee. It recognises that a requirement of non-disclosure is necessary in order for the Commission and Investigation Committee to do its work but that the level of prohibition applied to the Confidential Committee would not be appropriate here.

Sections 31, 33 and 34 are necessary to give certain protection to the records of the Commission and the Committees from discovery in legal proceedings and from applications under data protection and freedom of information law. These restrictions are necessary in order to ensure that the Commission and its committees are able to carry out the statutory duties assigned to them.

These provisions were enacted after the passing of the Freedom of information Act 1997, and, therefore, any restriction on the Freedom of Information Act was accepted by the Oireachtas in its passing of the Commission to Inquire into Child Abuse Act.

Residential Institutions Redress Act 2002

1.Specify, as respects any enactments that confer functions on that Minister of the Government or on a public body in relation to which functions are vested in that Minister of the Government, any provisions thereof that authorise or require the non-disclosure of a record. (Section 32(3)(a) FOI Act, 1997)

Section 28 of the Residential Institutions Redress Act 2002 prohibits any person from revealing any information provided to the Residential Institutions Redress Board or the Review Committee (both of which were established under this Act) and obtained by that person in the course of their work for the Board or Review Committee. The text of the section provides as follows:

28.—(1) A person (including the Board and the Review Committee) shall not, subject to this section, disclose information other than the information specified in subsection (4) or (5) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act.

(2) A person referred to in subsection (1) shall disclose information so referred to for the purpose of the performance of the functions of the person under this Act.

(3) Documents that are—

shall not constitute Departmental records within the meaning of section 2(2) of the National Archives Act, 1986.

(4) The Board shall keep a record of the following information—

and such records shall be available to the Minister for the purposes of section 13(13) and to any party against whom proceedings are initiated contrary to section 13(12).

(5) Notwithstanding subsection (1) or any other provision of, or an instrument made under, a statute or any other rule of law, a person shall disclose information other than the information specified in subsection (4) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act to—

(6) A person shall not publish any information concerning an application or an award made under this Act that refers to any other person (including an applicant), relevant person or institution by name or which could reasonably lead to the identification of any other person (including an applicant), a relevant person or an institution referred to in an application made under this Act.

(7) The Board shall, prior to the making of an order under section 3(3), determine the disposal of the documents concerning applications made to it.

(8) The Review Committee shall, prior to the making of an order under section 14(3), determine the disposal of the documents concerning applications made to it.

(9) A person who contravenes subsection (1) or subsection (6) shall be guilty of an offence.

Section 30 restricts the application of section 4 of the Data Protection Act 1988. The text of section 30 is as follows:

30.—Section 4 of the Data Protection Act, 1988 does not apply to personal data provided to the Board while the data is in the custody of the Board or the Review Committee.

Section 31 provides that a head may refuse to grant a request made under the Freedom of Information Act if access to the records could, in the opinion of the head, be reasonably be expected to prejudice the effectiveness of the performance of its functions by the Board or Review Committee. A head will, in considering such a request, first consult with the chairperson of the Board. The section also provides that a head will not refuse a request where in his or her opinion the public interest would be better served by release of the records concerned. The text of section 31 is as follows:

31.—(1) A head may refuse to grant a request (including a request made before the passing of this Act) under section 7 of the Freedom of Information Act, 1997 (“a request”), if access to the records concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of the performance of its functions by the Board or the Review Committee or the procedures or methods employed for such performance.

(2) Subsection (1) does not apply in relation to a case in which in the opinion of the head concerned the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.

(3) Before forming the opinion referred to in subsection (1) or (2), a head shall consult with the Chairperson.

(4) In this section, “head”, “public body” and “record” have the meanings assigned to them by section 2 of the Freedom of Information Act, 1997.

2.Specify whether, in the opinion of that Minister of the Government and (where appropriate) any such public body, formed having regard to the provisions, purposes and spirit of this Act—

(ii)any of the provisions referred to in paragraph (a) should be amended, repealed or allowed to continue in force, or

(ii)a reference to any of them should be included in the said column (3), and outlining the reasons for the opinion. (Section 32(3)(b))

Sections 28, 30 and 31 of the Residential Institutions Redress Act 2002 should continue in force. These provisions should not be amended, repealed or a reference to them included in column (3) of the Third Schedule to the Act. Requirements of non-disclosure are necessary in order for the Redress Board and the Review Committee to be in a position to carry out their duties effectively and responsibly. Protection from disclosure of information is fundamental to encouraging survivors of abuse to apply for redress under the Act and so is critical in ensuring the success of the legislative scheme.

These provisions were enacted after the passing of the Freedom of Information Act 1997, and, therefore, any restriction on the Freedom of Information Act was accepted by the Oireachtas in its passing of the Residential Institutions Redress Act.

Our Reference: 510/02/10/0020/3

1 June, 2004

Mr Seán Fleming T.D.

Chairman

Joint Committee on Finance and the Public Service

Leinster House

Dublin 2

RE: Report in accordance with Section 32(3) of the Freedom of Information Acts, 1997 and 2003

Dear Chairman,

I forward herewith my second report in accordance with Section 32(3) of the Freedom of Information Acts, 1997 and 2003.

Yours sincerely

Mary Harney T.D.,

Tánaiste and Minister for Enterprise, Trade & Employment.

Our Reference: 510/02/10/0020/3

3 June, 2004

Mr. Martin Groves

Committees Secretariat

3^rd Floor

Kildare House

Kildare Street

Dublin 2

RE: Report in accordance with Section 32(3) of the Freedom of Information Acts, 1997 and 2003

Dear Martin,

I wish to inform you that a copy of the Department of Enterprise, Trade and Employment’s second report in accordance with Section 32(3) of the Freedom of Information Acts, 1997 and 2003 was furnished, by the Tánaiste, to the Chairman of the Oireachtas Joint Committee on Finance and the Public Service on 1 June 2004.

I am now forwarding 20 copies of the Department’s report for the other members of the Oireachtas Joint Committee, in accordance with our earlier discussions.

Yours sincerely

Geraldine Lawlor

FOI Unit

Tel: 6312321

E-mail: geraldine_lawlor@entemp.ie

Freedom of Information Acts 1997 and 2003

Section 32(3) report on enactments relating to non-disclosure of records

Department of Enterprise,
Trade and Employment

May 2004

Introduction

Section 32 of the Freedom of Information Acts, 1997 and 2003 requires the Minister, every five years, to prepare and furnish to a joint committee of both Houses of the Oireachtas, a report in writing -

(a)specifying, as respects any enactments that confer functions on that Minister of the Government or on a public body in relation to which functions are vested in that Minister of the Government, any provisions thereof that authorise or require the non-disclosure of a record, and

(b) specifying whether, in the opinion of that Minister of the Government and (where appropriate) and such public body, formed having regard to the provisions, purposes and spirit of this Act -

and outlining the reasons for the opinion

The Oireachtas Joint Committee on Finance and the Public Service has been designated to review such reports.

This is the second such report made by the Minister for Enterprise, Trade and Employment to the Joint Committee. The report lists, on the following pages, non-disclosure provisions contained in legislation for which the Minister has responsibility, and makes recommendations in respect of each one. The text of the relevant non-disclosure provision is provided as an appendix to the report for reference.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended. repealed or allowed to niacontinue in force.

The provision should be allowed to remain.

Whether the provision should be included in the Column (3) of the Third Schedule of the FOI Act

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion outlined above.

This section imposes an obligation of confidentiality on the directors, management and staff and advisors of the Irish Auditing and Accounting Supervisory Authority (the Supervisory Authority) in relation to information obtained by them in the exercise of their powers/functions. This section. which also provides that a person who contravenes the Section is guilty of an offence, was included because a number of the Supervisory Authority’s functions and activities entail a requirement for secrecy and confidentiality, if they are to be capable of being carried out, as they entail interaction with accountancy bodies and companies, and companies in general on matters of great sensitivity.

This requirement for confidentiality is paramount at sections 23, 24, 25 and 26 of the Act.

Section 23 gives the Supervisory Authority the power, following a complaint or on its own initiative, to intervene in the disciplinary process of prescribed accountancy bodies in respect of a member company. Many aspects of matters relating to proceedings of this sort, which would typically entail examination of confidential books, records etc, from the bodies of their decisions or their conduct of investigations, require to be carried out with a guarantee of secrecy.

Under section 24 the Supervisory Authority can investigate a possible breach of a prescribed accountancy body’s standards by a member where it considers it appropriate or in the public interest, thus stepping into the shoes of the prescribed accountancy body of the member. This could involve examination of confidential books, records etc, and examination of relevant persons by the Supervisory Authority. The same considerations arise here as at section 23.

Also, and this is applicable both to section 23 and 24, it is essential that complainants, who could be vulnerable to recrimination, and who could be a vital source of information to the Supervisory Authority, should have their identity protected, so that they are not discouraged from coming forward with information of this sort. It is acknowledged that the FOI Act provides exemptions for information provided in confidence. Nonetheless, bodies such as IAASA requesting or receiving information of a confidential and highly delicate nature can never offer a guarantee of confidentiality if such information can be subject to disclosure under FOI. and if such was the case. it is highly likely to deter prospective donors of such information. whether individual or corporate. from providing it. The consequent unavailability to the Authority of this information would operate to the serious detriment of the discharge by it of its legislative remit and operating functions.

The Supervisory Authority is empowered under section 25 to carry out a review of a member of a recognised accountancy body with a view to establishing whether the recognised accountancy body is regulating its members under the arrangements approved in line with Section 9(2)(b). Reviews of this sort would normally encompass an accountancy body and, in any given case, one of its members. There would be compelling reasons for confidentiality in respect of the operation of this provision.

Section 26 provides that the Supervisory Authority can review accounts of certain categories of companies i.e public limited companies, listed or unlisted, and large private companies. If it appears to the Supervisory Authority that there is, or may be, a question whether the annual accounts comply with the Companies Acts in the case of such companies. it can give notice of this to the directors in question. If information on such a notification were to be placed in the public domain, the ramifications for the company in question in terms, for example, of public confidence, stock market quotation, etc. could be profound. The implications of the nuanced wording of section 26 which refers to “annual accounts where it appears to the Supervisory Authority that there is, or may be, a question whether the annual accounts comply with the Companies Acts” also have to be borne in mind. If such a notification was based on a premise by the Supervisory Authority which transpired not to have a sustainable foundation, and information on the notification leaked out, unwarranted damage could be inflicted on the notified party, and the reputation and regulatory standing of the Supervisory Authority could also be very badly affected, both in the eyes of the public and among the bodies and companies whose mandate it is to regulate.

The views of the Interim Board of the Irish Auditing and Accounting Supervisory Authority have been sought and these are consistent with the case now being made that Section 31 should not be included in the Third Schedule of the FoI Act.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion outlined above.

Under Sections 19 and 20 of the Companies Act 1990 the State is given wide ranging powers to compel bodies to furnish records, books etc. as part of an investigation into the affairs of companies, including powers for entry and search of premises. These powers, which were formerly exercised by the Minister for Enterprise. Trade and Employment, are currently vested in the Director of Corporate Enforcement. Section 21 prevents the disclosure of information so obtained without the consent of the body, other than in connection with a number of listed proceedings, which includes criminal proceedings. If such investigations proved the concerns of the Director of Corporate Enforcement (or the Minister ¹) to be unfounded, the making available of information via the FOI Act would represent an unwarranted public intrusion into the company’s private affairs which could benefit its competitors and adversely affect its own market position. If, on the other hand, such investigations proved to be well-founded, matters may require criminal investigation, and public disclosure of the information involved could serve to compromise such an investigation. Accordingly, the disclosure of information obtained on foot of such investigations of private corporate affairs should remain limited to the discrete circumstances outlined is section 21, as amended by the Company Law Enforcement Act 2001 (CLEA)². Any general provision allowing disclosure of material obtained by such investigations would frustrate the purpose or the relevant section and render it ineffective, as it would inevitably give rise to a large number of judicial review proceedings against the Director of Corporate Enforcement (and the Minister in relation to those investigations which remain the responsibility of the Minister) by the companies under investigation. It is imperative, therefore, for the effectiveness of the Director of Corporate Enforcement and for those other competent authorities to whom the Director may disclose information (such as the Tribunals of Inquiry established by the Oireachtas) that the provisions of section 21 be maintained.

¹ Under the Company Law Enforcement Act 2001 (CLEA), responsibility for all investigative matters under the Companies Acts transferred from the Minister to the Director of Corporate Enforcement. However, the Minister retained responsibility for five section 19 investigations that were initiated prior to, and were on-going at, the commencement of the CLEA. Three of these five investigations have yet to be completed.

² Section 21 of the 1990 Act provides that information obtained in the course of a section 19 investigation may not be published or disclosed without the previous consent in writing of the body to which it relates. The exceptions to this general prohibition on disclosure include where the information is required by any of the competent authorities listed in the section (e.g. the Minister, the Minister for Finance, the Revenue Commissioners, a court of competent jurisdiction, the Central Bank, etc.) or for certain specified circumstances which are also provided for in the section (e.g. with a view to the investigation or prosecution of offences under the various statutes). Section 31 of the CLEA amended section 21 of the 1990 Act by, inter alia, broadening the grounds on which information obtained in the course of a section 19 investigation may be disclosed without of the consent of the party to whom it relates. The amended section 21 allows for such information to be disclosed for the purpose of the performance by the Competition Authority or by a Committee of Inquiry of the Oireachtas, respectively, of any of their functions.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion outlined above.

This section imposes an obligations of confidentiality on the Director of Corporate Enforcement and his staff with regard to information that they may acquire in the course of their official duties and specifies the circumstances in which, and the persons to whom, such information may validly be disclosed. The work of the Director involves the collection and evaluation of sensitive information relating to individuals and companies under investigation by the Director. The unauthorised disclosure of any such information may leave the Director open to legal action and would prejudice the effective discharge of the Director’s functions. A confidentiality provision such as this is necessary both to encourage confidential reporting of suspected offences to the Director and to protect any such information from inappropriate disclosure. Accordingly, the disclosure of information obtained by the Director in the course of the performance of any of his functions should remain limited to the discrete circumstances outlined in section 17 of the Company Law Enforcement Act 2001, which include the circumstances set out in section 21 of the Companies Act 1990. It is imperative, therefore, for the effectiveness of the work of the Director of Corporate Enforcement, and for those other competent authorities to whom the Director may disclose information (such as the Tribunals of Inquiry established by the Oireachtas), that the provisions of section 17 are maintained.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force

These provisions should be allowed continue in force.

Whether the provisions should be included in column (3) of the Third Schedule of the FOI Act

The above provisions should not be included in column (3) of the Third Schedule

Reasons for the Opinion outlined above

Section 32(2) of the Industrial Designs Act 2001 provides for the deferment of publication of a registered design at the request of the proprietor of the design. The option to defer publication of a registered design addresses the need of several sectors of industry who feel they cannot afford to publish their design before the products incorporating the design reach the market. Particularly in the field of fashion, although the problem is not uncommon in the domain of cars, letting competitors know in advance the general line of the design of a future collection could jeopardise the success of a commercial operation based on the exclusive character of such a line. The deferment period of 30 months is consistent with the deferment period in Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community Designs.

Under Section 38(1) of the Industrial Designs Act, 2001 the Public have a right to inspect the Designs Register subject to certain limitations which are set out under Section 38(3). For example, if a deferment of publication is requested under Section

32(2) of the Act, the application would not be open to public inspection under Section 38(3) until the period of deferment expires.

Section 39 of the Industrial Designs Act 2001 allows for the provision to the public of information in relation to an application for registration of a registered design and to permit inspection of documents relating to the application. It also provides some exceptions to this general rule, for example where publication of a design has been deferred. If a Section 32 deferment of publication is granted, Section 39(2) requires that no information or documents relating to that particular application shall, without the consent of the registered proprietor or applicant, be published or communicated to any person.

Likewise if an application for the registration of a design has been abandoned or refused, Section 39(5) of the Industrial Design Act, 2001 ensures that neither the application of any other material can at any time be open to inspection.

The legislation makes it clear that no information from the designs register, in respect of cases where publication of the registration of a design has been deferred shall be available to the public until the period of deferment expires. These provisions ensure that commercially sensitive information provided in confidence on deferred publications will remain confidential.

Under Regulation 31(2) of the Industrial Designs Regulations 2002 the right to information under section 39 of the Principal Act does not apply to any document-

(a)prepared in the Patents Office solely for use therein;

(b)sent to the Patents Office, whether at its request or otherwise, for inspection and subsequent return to the sender, or

(c)issued or received by the Patents Office which the Controller considers should be treated as confidential.

This provision ensures that the right to view documents shall not include confidential information e.g. financial or otherwise commercially sensitive information that might be contained in these documents.

Allowing the FOI Act to overrule these provisions would be detrimental to applicants seeking to obtain industrial design rights and could damage the system of Industrial Design Property in the State.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

All of the enactments and provisions should be allowed to continue in force.

Whether the provisions should be included in column (3) of the Third Schedule of the FOI Act.

None of the enactments or provisions of the enactments should be included in the column (3) of the Third Schedule.

Reasons for the Opinion outlined above

The above legislation relates to secrecy provisions and rules concerning the inspection of documents as well as time limits governing the disclosure of information in the area of intellectual and industrial property. The provisions are in line with European international intellectual property law and treaties such as the European Patent Convention and the Patent Co-operation Treaty to which Ireland is a party.

Patents are granted by patent offices in exchange for a full disclosure of the invention which is published and thereby made available to the general public, and this principle is enshrined in Irish Patent Law. As is the case in most countries, Irish patent applications are published (laid open to public inspection) generally 18 months after the filing date or, where priority has been claimed, the priority date (Section 28 of the Patents Act, 1992). An exception arises in the case of short term patents as the legislation provides that “If a short term patent is granted before the (18 month) period referred to in Section 28(1) the application shall be published at the same time as the publication provided for in Section 34(1)” i.e. on grant.

The 18 month non-disclosure provision allows valuable commercial information concerning an invention to be kept secret while affording an applicant for a patent a limited period of time in which to obtain a search report which will assist in determining the novelty and inventiveness of the invention, and also to assess the commercial prospects of the invention. It also allows an applicant time (12 months from the filing date) to decide if foreign applications are to be filed. Should an applicant decide to withdraw a patent application before the expiry of the 18 month period, the application is not published and remains secret.

Allowing the FOI Act to overrule these provisions would be detrimental to applicants seeking to obtain industrial property rights and seriously damage the system of intellectual property protection in the State.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended. repealed or allowed to continue in force

These provisions should be allowed to continue in force.

Whether the provisions should be included in column (3) of the Third Schedule. of the FOI Act

None of the enactments or provisions of the enactments should be included in the column (3) of the Third Schedule.

Reasons for the Opinion outlined above

The above legislation concerns confidentiality between client and agent and/or the State.

Section 43: Non-disclosure of a trade mark application prior to publication in the Patents Office Journal is necessary to (i) protect the confidentiality of the applicant, (ii) to protect the integrity of the new trade mark and (iii) to allow for relevant searches to proceed prior to publication in the Journal.

Section 70: Non-disclosure is required here as the Controller of Patents, Designs and Trade Marks has specific powers for the provision of information both before and after publication involving forms, fees and timeframes that provide certainty for applicants concerning the timing and manner of release of information.

Section 91: This section provides that any communication between a person and his or her agent is privileged from disclosure in legal proceedings in the same way as a communication between a person and his or her solicitor. Given that such privileged communication is exempt under section 22 of the Freedom of Information Act 1997, as amended, there is no purpose to be served by including this provision in the Third Schedule, and to do so could cause confusion.

Our intellectual property legislation has been established in accordance with various International Treaties and Conventions to which Ireland is a party. The provisions in that legislation directly and indirectly governing the disclosure of information are fundamental to the operation of the international system of intellectual property protection and it is therefore necessary for them to continue in force.

Our intellectual and industrial property legislation in large part deals with the handling of records (e.g. applications for patents, trade marks and designs) which contain commercially sensitive information which must remain confidential unless otherwise provided by the Intellectual and Industrial property laws at issue.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

This provision should be allowed to continue in force.

Whether the provision should be included in the Third Schedule of the FOI Act.

This provision should be included in column (3) of the Third Schedule.

Reasons for the Opinion outlined above.

This paragraph is a general secrecy provision relating to the non-disclosure of information obtained by staff and board members in performance of their duties. Having regard to the provisions, purposes and spirit of the FOI Act the provision should be included in column (3). The views of the National Standards Authority of Ireland have been sought and they are in agreement with this course of action.

Enactment that Authorises or Requires Non - Disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force:

This Act has been repealed and replaced by the Competition Act 2002.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act:

The provision should be removed from column (3) of the Third Schedule.

Reasons for the Opinion above:

The secrecy provision should be removed from the Third Schedule because the Act has been repealed and the secrecy provision no longer applies.

Enactment that Authorises or Requires Non - Disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force:

The provision should continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act:

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion above:

Section 32 of the Competition Act, 2002 prohibits the unauthorised disclosure of information in certain circumstances, and replaced similar provisions contained in paragraph 9 to the Schedule of the Competition Act, 1991. The 1991 Act was repealed with the commencement of the 2002 Act.

Section 32 of the 2002 Act states that it will be a criminal offence for any person to disclose information obtained by the Competition Authority pursuant to its powers, but goes further than the 1991 Act in that it entitles persons injured by such a disclosure to sue the discloser. While it is acknowledged that the 1991 provision was included under the Third Schedule, it is considered that for the reasons outlined below, the analogous provision in the 2002 Act should not be included.

The Competition Authority is the statutory body charged with the enforcement of competition law in the State and is also responsible for the assessment of mergers and acquisitions. In the course of this work, the Authority receives commercially and legally sensitive information on a confidential basis, e.g. market share data in the case of a merger or information relating to breach of the Competition Act. Such information is vital to the Authority in order to effectively carry out its functions. If there was a possibility that such information could be released under the FoI Act, the Authority’s investigations could be jeopardised by a party’s refusal to provide such information.

In addition, with the implementation of Regulation 1/2003 on 1^st May, 2004 the Authority will fully participate in a European Competition Network of national competition authorities. As part of the Authority’s participation, it will be in receipt of confidential information from other Member States and it will also be transmitting its own confidential information to Member States. Article 28 of the regulation contains a “Professional Secrecy” provision, which prohibits the disclosure of information provided pursuant to the Regulation. It is our understanding that this Regulation supersedes national provisions. In order to comply with this provision and to provide cast iron guarantees to the parties concerned that such information will not be released, Section 32 should not be included in the Third Schedule.

In conclusion, it is considered that to include Section 32 would have negative consequences for the integrity of competition law enforcement in the State, and in the light of this, coupled with the fact that there are criminal sanctions for disclosure and aggrieved parties may now sue the disclosing party, Section 32 should not be included in the Third Schedule.

Enactment that Authorises or Requires Non - Disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force:

The provision should continue in force.

Whether the provision should be included in the Third Schedule of the FOI Act:

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion above:

The provision provides for the removal, prior to publication, of commercially sensitive information from determinations made by the Competition Authority following a full investigation of a proposed merger. The provision replaces a similar provision under Section 17(5) of the Competition Act, 1991, which was not included in the Third Schedule. The 1991 Act was repealed by the Competition Act. 2002.

The current provision states as follows:

“Where the Authority makes a determination under subsection (3), it shall reduce the determination to writing (and the determination in that form is referred to in paragraph (a) and subsection (7) as a “written determination”) and -

(a)furnish to the undertakings which made the notification a copy of the written determination within 4 months after the appropriate date, and

(b)publish the determination, with due regard for commercial confidentiality, within 1 month after the making of the determination.

The provision should not be included in column (3) of the Third Schedule of the FOI Act, as the possible release of commercially sensitive information, as provided for in the FOI Act, would be likely to jeopardise the Authority’s investigations on the basis that the interested parties and/or objecting third parties to proposals would be likely to resist (on legal grounds or otherwise) providing commercial information to investigations.

Furthermore, if the provision were to be included in the Third Schedule of the FOI Act, it would undermine the Authority’s ability to fully assess whether the effect of a particular merger would be to substantially lessen competition in the State. Accordingly, the provision should continue in force.

Enactment that Authorises or Requires Non - Disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The provision should continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act:

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion above:

The provision provides for the removal, prior to publication, of commercially sensitive information from determinations made by the Competition Authority following an initial investigation of a proposed merger. The provision replaces a similar provision under Section 17(5) of the Competition Act, 1991, which was not included in the Third Schedule. The 1991 Act was repealed by the Competition Act, 2002.

The current provision states as follows:

(c)“Where the Authority makes a determination referred to in paragraph (a) or (b) of subsection (2), it shall publish that determination, with due regard for commercial confidentiality, within 2 months after the making of the determination.

The provision should not be included in column (3) of the Third Schedule of the FOI Act, as the possible release of commercially sensitive information as provided for in the FOI Act would be likely to jeopardise the Authority’s investigations on the basis that the interested parties and/or objecting third parties to proposals would be likely to resist (on legal grounds or otherwise) providing commercial information to investigations.

Furthermore, if the provision were to be included in the Third Schedule to the FOI Act it would undermine the Authority’s ability to fully assess whether the effect of a particular merger would be to substantially lessen competition in the State. Accordingly, the provision should continue in force.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended. repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act

The provision should not be included in column (3) of the Third Schedule.

Reasons for the Opinion outlined above.

The above provision provides that members of the Personal Injuries Assessment Board, staff of the Board, members of committees of the Board and advisers/consultants engaged by the Board shall not disclose confidential information obtained by them in the exercise of their duties without the authorisation of the Board.

Such information could for example include personal information relating to an individual’s application for personal injuries compensation. Such information is essentially that which a claimant’s solicitor or the Courts previously obtained. It is vital that in no circumstances is this type of information released without the express authorisation of the Board. Such information may be the subject of subsequent Court proceedings. With this in mind it is vital that the secrecy provision stays in place. Keeping information confidential is necessary for the integrity of the entire PIAB operation. The Board may authorise, in certain circumstances the disclosure of confidential information but in general personal information in relation to a party will only be given to another party with the consent of the party.

The establishment of the PIAB seeks to reduce the level of insurance costs in the State, by reducing the litigation costs associated with delivering compensation. It is envisaged that the necessity of seeking legal advice in cases where liability is not contested will be significantly reduced.

In order to ensure the integrity of, and confidence in, this system, the system should not expose parties to any possibility that information relating to a claim would be released, in the same manner that information that would have previously been imparted only to the party's solicitor would be protected. The PIAB Act does allow for the Board to transfer certain information between certain parties.

Ennactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

It is essential that Section 17 of the Industrial Development (Science Foundation Ireland) Act 2003 continues in force without amendment.

This provision sets down a prohibition, save as provided by law, on members of the Board, the Director General, committees of Science Foundation Ireland (SFI), on members of staff and on advisers or consultants to the Foundation, in relation to the disclosure of confidential information which they receive in the course of performing their duties.

This confidentiality provision is necessary for the agency to carry out its functions, as set out in Section 7 of the 2004 Act.

Prior to the submission of research proposals, the Agency is often asked for assurances that information submitted will be treated confidentially. The obligations set out in Section. 17 of the Industrial Development (Science Foundation Ireland) Act 2003 allows SFI to provide the necessary assurances. Given SFI’s remit as set out in Section 7 it is important that SFI continues to receive as much information as possible to ensure that the proposals submitted are of the highest quality. It is therefore considered essential for the continued operation of Section 17 of the Act.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act.

It is accepted that the provision should be included in column (3) of the Third Schedule.

Reasons for the Opinion outlined above.

This provision is similar to paragraph 5 of the Second Schedule of the Industrial Development Act 1993 which is included in column (3) of the Third Schedule of the Freedom of Information Act, 1997. In view of this and to comply with the spirit and intent of the FOI Act it is considered that Section 17 of the Industrial Development (Science Foundation Ireland) Act 2003 should be included in column (3). The view of Science Foundation Ireland has been sought and they are in agreement with this course of action.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The Secrecy provision in S 16 of the Industrial Development (Enterprise Ireland) Act 1998 should be allowed to continue in force.

This provision sets down a prohibition, save as provided by law, on members of the Board and committees of Enterprise Ireland and on its staff in relation to the disclosure of information that they receive in the course of performing their duties. Breach of this provision results in the commission of a criminal offence. This is a normal type of provision in respect of bodies such as Enterprise Ireland.

This confidentiality provision is necessary for the agency to carry out its functions, as set out in Section 7 of the 1998 Act, properly and effectively in the public interest. Greater value for the State’s money is dependent on the ability of the agency to successfully appraise projects for grant assistance, which in turn is dependent on the willingness of third parties to provide it with essential information.

Enterprise Ireland obtains confidential and commercially sensitive information from a number of sources including financial institutions, potential investors, customers and competitors. Prior to providing information the agency is often asked for assurances that such information would be treated in confidence and in some cases separate confidentiality agreements would be sought. The statutory obligations regarding disclosure of information as set out in S 16 enables the agency to provide the necessary assurances of confidentiality and also demonstrates to client companies and individuals that information furnished will not be put into the public domain save as provided by law.

In view of the above, and given Enterprise Ireland’s industrial development remit, and having regard to the nature and range of services it provides, it is important that the agency continues to receive as much information from as wide a source as possible. In this regard, the continuation of S16 is considered essential by the Agency.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act

The provision should be included in column (3) of the Third Schedule of the FOI Act.

Reasons for the Opinion outlined above.

Enterprise Ireland expressed the opinion that the phrase “save as otherwise provided by law” in Section 16 of the Industrial Development (Enterprise Ireland) Act, 1998, removes the necessity of listing this provision in the Third Schedule to the FOI Act. However, the Department has received legal advice that the phrase “save as otherwise provided by law” does not have the same effect as including a provision in the Third Schedule, and for the avoidance of doubt this phrase should not be considered as an alternative. Given that many other similar bodies which have a role in industrial promotion are, or will be, subject to listing in the Third Schedule, in order to comply with the spirit and intent of the FOI Act, and for the purposes of clarity, the Department believes that this secrecy provision should be listed in the Third Schedule.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act.

This provision should be removed from column (3) of the Third Schedule of the FOI Act.

Reasons for the Opinion outlined above.

This provision governs the confidentiality of information which comes into the possession of the Labour Relations Commission (LRC) in the course of its mediation role between employers and trades unions. The provision was listed in the Third Schedule to the Freedom of Information Act 1997 when it was passed. When the Act was extended to the functions of the LRC, and in view of the great sensitivity of some of the information which comes before the Commission, the provisions of FOI were extended only to the administrative functions of the LRC. Section 25(6) of the Industrial Relations Act 1990 remains listed in the Third Schedule to the FOI Act. despite the fact that the records referred to in this section would not come within the remit of FOI.

Section 25(6) of the Industrial Relations Act 1990 provides as follows:

“Functions of the Commission

Section 25-(6) The Commission, a member of the Commission or any of its staff shall not include in any report any information obtained by it in the course of any proceedings before it under this Act as to any trade union or as to the business carried on by any person which is not available otherwise than through evidence given at the proceedings (including conciliation conferences and advisory meetings) without the consent of the trade union or person concerned, nor shall any member of the Commission or any of its staff or any person concerned in the proceedings, without such consent, disclose any such information.”

In extending the Freedom of Information Act to the Labour Relations Commission in 2001, under the Freedom of Information Act 1997 (Prescribed Bodies) (No. 3) Regulations 2001 (S.I. No. 128 of 2001) specific exemptions were provided for in respect of three operational functions. Schedule 2, which specifies the functions of the Labour Relations Commission not deemed to come within the scope of the Act, provides that the Freedom of Information Act shall not apply to:-

“The provision of services to or in respect of particular trade disputes or to particular employers, trade unions, employers organisations, employees or their representatives, including in such circumstances -

(a)The provision of conciliation services,

(b)…., and

(c)the provision of advisory services”

These exemptions were granted to ensure that the bonds of trust, confidentiality and discretion that disputant parties expect and demand, when they use the conciliation and advisory services of the Labour Relations Commission. are not undermined.

Given that the documentation produced by the Labour Relations Commission or any of its staff under section 25(6) of the Industrial Relation Act 1990, is exempt from the provisions of the Freedom of Information Act for the reasons set out above, it is not appropriate to include this section in the Third Schedule of the Freedom of Information Act.

Legal advice has been received from the Office of the Attorney General on the implications of listing a secrecy provision in the Third Schedule to the FOI Act, despite the fact that FOI does not extend to the records covered by the secrecy provision. In particular, there was a concern that, despite the fact that the regulations which extend FOI to the LRC do not cover the records in question, it could have been argued that the inclusion of the provisions within the Third Schedule, particularly in the primary legislation, could have had the unintended effect of suggesting that it had been intended to grant a right of access to such records. However, legal advice received indicates that this interpretation would be incorrect. The advice further states that the retention of this secrecy provision in the Third Schedule is unnecessary.

Given all of the circumstances outlined above, we would recommend the removal of this provision from the Third Schedule.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in the Third Schedule of the FOI Act.

This provision should be removed from column (3) of the Third Schedule of the FOI Act.

Reasons for the Opinion outlined above.

This provision governs the confidentiality of information which comes into the possession of the a rights commissioner in the course of his or her role in industrial relations mediation. The rights commissioner service currently comes under the remit of the Labour Relations Commission (LRC). The provision was listed in the Third Schedule to the Freedom of Information Act 1997 when it was passed. When the Act was extended to the functions of the LRC, and in view of the great sensitivity of some of the information which comes before the Commission, including the rights commissioner service, the provisions of FOI were extended only to the administrative functions of the LRC. Section 14 of the Industrial Relations Act 1969 remains listed in the Third Schedule to the FOI Act, despite the fact that the records referred to in this section would not come within the remit of FOI.

Section 14 of the Industrial Relations Act 1969 provides as follows:

“Prohibition on disclosure of information

14.- A rights commissioner shall not include in any recommendation any information obtained by him in the course of any investigation under this Act as to any trade union or as to the business carried on by any person which is not available otherwise than through evidence given at the investigation without the consent of the trade union or persons concerned, nor shall any person concerned in proceedings before a rights commissioner under this Act, without such consent, disclose any such information.”

The rights commissioners operate as a service of the Labour Relations Commission. They are, however, independent in the performance of their functions, as provided for under section 35 of the Industrial Relations Act 1990.

When the Freedom of Information Act was extended to the Labour Relations Commission in 2001 under the Freedom of Information Act 1997 (Prescribed Bodies) (No. 3) Regulations 2001 (S.I. No. 128 of 2001), it was done so in respect of specified functions. Exemptions from the scope of the Act were provided for in respect of three operational services, including the dispute resolution functions of the rights commissioner service. Schedule 2 of the Regulations provides that the Freedom of Information Act shall not apply to:-

“The provision of services to or in respect of particular trade disputes or to particular employers, trade unions, employers organisations, employees of their representatives, including in such circumstances -

(a)…

(b)the provision of rights commissioner services, and

(c)…”

These exemptions were granted to ensure that the bonds of trust, confidentially and discretion that disputant parties expect and demand when they use the rights commissioner service are not undermined.

Given that the documentation produced by the rights commissioner service under section 14 of the Industrial Relations Act 1969, is exempt from the provisions of the Freedom of Information Act for the reasons set out above. it is not appropriate to include this section in the Third Schedule of the Freedom of Information Act.

Legal advice has been received from the Office of the Attorney General on the implications of listing a secrecy provision in the Third Schedule to the FOI Act, despite the fact that FOI does not extend to the records covered by the secrecy provision. In particular, there was a concern that, despite the fact that the regulations which extend FOI to the LRC do not cover the records in question, it could have been argued that the inclusion of the provisions within the Third Schedule, particularly in the primary legislation, could have had the unintended effect of suggesting that it had been intended to grant a right of access to such records. However, legal advice received indicates that this interpretation would be incorrect. The advice further states that the retention of this secrecy provision in the Third Schedule is unnecessary.

Given all of the circumstances outlined above, we would recommend the removal of this provision from the Third Schedule.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act.

This provision should be removed from column (3) of the Third Schedule of the FOI Act.

Reasons for the Opinion outlined above.

This provision governs the confidentiality of information which comes into the possession of the Labour Court in the course of its role in the resolution of industrial relations disputes. The provision was listed in the Third Schedule to the Freedom of Information Act 1997 when it was passed. FOI has not yet been extended to the activities of the Court. However, it is being recommended to the Department of Finance that Freedom of Information be extended to the administrative functions of the Court only, in view of the great sensitivity of some of the information which comes before the Labour Court. Section 22 of the Industrial Relations Act 1946 remains listed in the Third Schedule to the FOI Act, despite the fact that the records referred to in this section do not come within the remit of FOI, and would continue to be outside of FOI when the FOI Act is extended to encompass the administrative functions of the Court.

Section 22 of the Industrial Relations Act 1946 provides as follows:

“Prohibition on disclosure of information

22. - The Court shall not include in any report any information obtained by it in the course of any proceedings before it under this Act as to any trade union or as to the business carried on by any person which is not available otherwise than through evidence given at the proceedings, without the consent of the trade union or persons concerned, nor shall any member of the Court or the registrar or any officer or servant of the Court or any person concerned in the proceedings, without such consent, disclose any such information.”

The Labour Court, which is a quasi-judicial body, does not at present come within the scope of the Freedom of Information Act. Consideration is, however, being given to extending the scope of the FOI Act to the administrative functions of the Court only.

The Labour Court is a tripartite body made up of representatives of Employers, Trade Unions and Independent Chairs. The members are expected to act independently in fulfilling their statutory functions and the Court must act as a collegiate body. This means that where any issue comes before the Court a single decision is given and the members cannot divulge the basis upon which the decision was arrived at. The procedures of the Court in this regard are prescribed by Section 20 of the Industrial Relations Act, 1946. Section 20(4) of the 1946 Act specifically provides that the existence of any opinion, whether accenting to the decision or dissenting from it, shall not be disclosed. Apart from being contrary to the expressed provisions of Section 20(4) of the 1946 Act, it would be highly undesirable and would undermine the effectiveness and independence of the Court.

The Court frequently has access to confidential and highly sensitive information in relation to business or the internal workings of Trade Unions, which it obtains in the course of a hearing. There is little doubt that companies, or Trade Unions would not provide this type of information if it were felt that it could come into the public domain. There are expressed statutory provisions with regard to the prohibition of disclosure in circumstances such as this. In particular, section 22 of the Industrial Relations Act, 1946, (which is currently included in the Third Schedule to the FOI Act) prohibits the Court or any officer or servant of the Court from disclosing information received by the Court in relation to a hearing.

There are other practical measures which necessarily arise in the course of trying to resolve any industrial relations dispute which must be treated as confidential. The Court is frequently provided with highly sensitive background information in relation to issues coming before it by Trade Union or Employer representatives. The release of this information could result in difficulties for the individuals from whom the information is obtained and may result in difficulties for the Court in receiving similar information in the future.

Given that it is not proposed to extend the scope of the FOI Act to the operational aspect of the Labour Court, it is not appropriate to include section 22 of the Industrial Relations Act 1946 in the Third Schedule of the Freedom of Information Act.

Legal advice has been received from the Office of the Attorney General on the implications of listing a secrecy provision in the Third Schedule to the FOI Act, despite the fact that FOI does not extend to the records covered by the secrecy provision. In particular, there was a concern that, despite the fact that it is proposed to make regulations to extend FOI to the administrative functions of the Labour Court only, it could be argued that the inclusion of the provision within the Third Schedule, particularly in the primary legislation, could have had the unintended effect of suggesting that it had been intended to grant a right of access to such records. However, legal advice received indicates that this interpretation would be incorrect. The advice further states that the retention of this secrecy provision in the Third Schedule is unnecessary.

Given all of the circumstances outlined above, we would recommend the removal of this provision from the Third Schedule.

Enactment that Authorises or Requires Non-disclosure of a Record

Opinion as to Whether the provision should be amended, repealed or allowed to continue in force.

The provision should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act

The provision should not be included in column (3) of the Third Schedule of the FOI Act.

3. Reasons for the Opinion outlined above.

The objective of the Transnational Information and Consultation of Employees Act is to improve employees’ rights to information and consultation on transnational issues affecting those employed in large scale companies which have business units and employees in at least two of the EU Member States.

Section 15 of the Transnational Information and Consultation of Employees Act 1996 provides as follows:

“Confidential Information

15.- (i) Subject to subsection (2) and section 20, a person who is or at any time was

(a)a member of -

(i)a Special Negotiating Body,

(ii)a European Employees’ Forum, or

(iii)a European Works Council

or

(b)an employees’ representative to an information and consultation procedure

shall not reveal any information expressly provided in confidence to him or her or to the Body, Forum or Council.

(2) A person may, in accordance with his or her duties as a member, expert or employees’ representative to the procedure, disclose such information -

(a)to the Body, Forum, or Council of which he or she is or was then a member,

(b)to another employees’ representative to the procedure, or

(c)to the member, body or person he or she is or was then employed to advise.

(3) The central management may withhold from a Special Negotiating Body, European Employees’ Forum, European Works Council or in connection with an information and consultation procedure, information that it claims is commercially sensitive -

(a)where it can show that the disclosure would be likely to prejudice significantly and adversely the economic or financial position of an undertaking or group of undertakings or breach statutory or regulatory rules,

or

(b)where the information is of a kind that meets objective standards for determining that it should be withheld agreed between the central management and the Special Negotiating Body, European Employees’ Forum, European Works Council or the employees’ representatives to an information and consultation procedure.

(4) ………”

The provision should not be included in Third Schedule of the FOI Act as this provision relates to records held by private bodies not subject to the FOI legislation. In addition, the provision arises from Ireland’s obligation to transpose into Irish law the EC Directive 94/95 EC of 22 September 1994. To include this provision in the Third schedule of the FOI Act would have the effect of changing the intention of the Directive. For these reasons it would be inappropriate to include the provision in the Third Schedule of the FOI Act.

Enactment that Authorises or Requires Non - Disclosure of a Record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force:

The provision should be allowed to continue in force. Section 25 of the Prices Act, 1958 prohibits the disclosure of information obtained by a person by virtue of the powers conferred by the Act. This prohibition should remain to continue in force as the success of actions to be taken by an authorised officer may depend on their ability to obtain information which may be sensitive and which may be given on the understanding that it would remain confidential.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act:

The provision should be included in column (3) of the Third Schedule.

Reasons for the Opinion above:

On foot of the examination of non-disclosure provisions in the Department’s legislation for the last section 32(3) report in 1999, and particularly in response to observations made by the Information Commissioner at the time, it was conceded that this provision could be listed in the third schedule.

APPENDIX

Relevant Sections of Acts and regulations quoted

Companies (Auditing and Accounting) Act, 2003 - Section 31

31.—(1) No person shall disclose, except in accordance with law, information that—

(a) is obtained in performing the functions or exercising the powers of the Supervisory Authority, and

(b) has not otherwise come to the notice of members of the public.

(2) Without limiting subsection (1), the persons to whom that subsection applies include the following:

(a) a member or director or former member or director of the Supervisory Authority;

(b) an employee or former employee of the Supervisory Authority;

(c) a professional or other adviser to the Supervisory Authority, including a former adviser.

(3) Subsection (1) does not prohibit the Supervisory Authority from disclosing information referred to in that subsection—

(a) if the disclosure is, in its opinion, necessary to enable it to state the grounds on which it made a decision under section 23, 24 or 26, or

(b) if the information is, in its opinion, connected with the functions of, and if the disclosure is made to, any of the following:

(i) the Minister;

(ii) the Minister for Finance;

(iii) the Garda Síochána;

(iv) the Director of Public Prosecutions;

(v) the Director of Corporate Enforcement;

(vi) the Revenue Commissioners;

(vii) the Comptroller and Auditor General;

(viii) the Central Bank and Financial Services Authority of Ireland;

(ix) the Irish Takeover Panel;

(x) the Irish Stock Exchange;

(xi) the Pensions Board;

(xii) a prescribed accountancy body;

(xiii) a member of a recognised accountancy body who is qualified for appointment as an auditor;

(xiv) an inspector appointed under any other enactment;

(xv) any person prescribed under section 48(1)(i) for the purposes of this section.

(4) A person who contravenes subsection (1) is guilty of an offence.

Companies Act 1990 - Section 21

21.—(1) No information, book or document relating to a body which has been obtained under section 19 or 20 shall, without the previous consent in writing of that body, be published or disclosed, except to a competent authority, unless the publication or disclosure is required—

(a) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings pursuant to, or arising out of the Companies Acts or any criminal proceedings for an offence entailing misconduct in connection with the management of the body’s affairs or misapplication or wrongful retainer of its property;

(b) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings pursuant to or arising out of the Exchange Control Acts, 1954 to 1986, or the Insurance Acts, 1909 to 1990, or regulations on insurance made under the European Communities Act. 1972;

(c) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Part with respect to reports made by inspectors appointed thereunder by the court or the Minister;

(d) with a view to the institution by the Minister of proceedings for the winding-up under The Principal Act of the body or otherwise for the purposes of proceedings instituted by him for that purpose;

(e) for the purposes of proceedings under section 20,

(2) A person who publishes or discloses any information, book or document in contravention of this section shall be guilty of an offence.

(3) For the purposes of this section “competent authority” includes—

(a) the Minister,

(b) a person authorised by the Minister,

(c) an inspector appointed under this Act,

(d) the Minister for Finance,

(e) an officer authorised by the Minister for Finance,

(f) any court of competent jurisdiction,

(g) a supervisory authority within the meaning of regulations relating to insurance made under the European Communities Act. 1972, and

(h) the Central Bank

Company Law Enforcement Act, 2001 - Section 17

17.—(1) Information obtained by virtue of the performance by the Director of any of his or her functions which has not otherwise come to the notice of the public, shall not be disclosed, except in accordance with law, by any person, including—

(a) the Director or a former Director,

(b) a professional or other adviser (including a former adviser) to the Director, and

(c) an officer or former officer of the Director.

(2) Notwithstanding subsection (1), information referred to in that subsection which, in the opinion of the Director, may be required—

(a) for a purpose or reason specified in subsection (1) of section 21 of the Act of 1990.

(b) for the performance by a competent authority (within the meaning of that section 21) of a function or functions of the authority, or

(c) for the performance by the Director of a function or functions of the Director, may be disclosed by or under the authority of the Director to the extent that, in the opinion of the Director, is necessary for that purpose.

(3) Notwithstanding subsection (1), information which, in the opinion of the Director or an officer of the Director, may relate to the commission of an offence which is not an offence under the Companies Acts may be disclosed to any member of An Garda Síochána.

(4) A person who contravenes this section is guilty of an offence.

Industrial Designs Act, 2001 - Section 38(3)

38.—(1) Subject to subsection (3), the public shall have a right to inspect the Register at such times and in such a manner as may be prescribed by the Minister.

(2) Where a request is made to the Controller for a certified or uncertified copy of, or extract from, an entry in the Register, other than an entry that is not open to public inspection by virtue of subsection (3), the Controller shall issue a copy of the entry or extract to the person making the request on payment of the prescribed fee.

(3) Where deferment of publication is requested under section 32, the Register shall not be open to public inspection, in relation to that design, until the expiry of that period of deferment.

(4) In relation to any portion of the Register kept otherwise than in documentary form—

(a) the right of inspection conferred by subsection (1) is a right to inspect the material on the Register, and

(b) the right to a copy or extract conferred by subsection (2) is a right to a copy or extract in a form in which it can be taken away and in which it is visible and legible.

(5) Each of the following—

(a) a copy of an entry in the Register or an extract from the Register which is supplied under subsection (2), or

(b) a copy of any representation or document kept in the Patents Office or an extract from any such document,

which purports to be a certified copy or certified extract shall be admitted in evidence in civil or criminal proceedings without further proof and without production of an original.

(6) In this section, “certified copy” and “certified extract” means a copy and an extract certified by the Controller and sealed with the seal of the Controller.

Industrial Designs Act, 2001 - Section 39(2) & 39(5)

39.—(1) Subject to subsection (2), after the registration of a design and upon the filing of a written request by any person in the prescribed manner, the Controller shall, subject to compliance with the prescribed conditions, give the person making the request such information, and permit him or her to inspect such documents, relating to the application for registration of the design concerned as may be specified in the request.

(2) Where deferment of publication is granted under section 32, no information or documents constituting or relating to the application shall, without the consent of the registered proprietor or the applicant (as the case may be), be published or communicated to any other person by the Controller under subsection (1) until the expiry of that period of deferment.

(3) Subsection (2) shall not prevent the Controller from publishing or communicating to others any prescribed information relating to an application for registration of a design.

(4) Where a person is notified that an application for registration of a design has been made and that the applicant shall, if the design is registered, bring proceedings against that person in the event of his or her doing an act specified in the notification, that person may make a request under subsection (1), notwithstanding that the design has not been registered or that deferment of publication has been granted, and that subsection shall apply accordingly.

(5) Where an application for the registration of a design has been abandoned or refused, neither the application for registration nor any other material or information field in pursuance thereof shall at any time be open to inspection at the Patents Office or be published by the Controller.

Industrial Designs Regulations, 2002 - Reg. 31(2)

(1) A person making a request for information under section 39 of the Principal Act shall pay the feet set out in Schedule 1.

(2) The right to information under section 39 of the Principal Act does not apply to any document-

(a)prepared in the Patents Office solely for use therein;

(b)sent to the Patents Office, whether at its request or otherwise, for inspection and subsequent return to the sender, or

(c)issued or received by the Patents Office which the Controller considers should be treated as confidential.

(3) Nothing in this Regulation shall be construed as imposing on the Controller the duty of making available for public inspection any document or part of a document which in his or her opinion prejudices a person’s reputation.

Patents Act, 1992 - Section 28

28.—(1) A patent application shall be published in the prescribed manner as soon as practicable after the expiry of the period of eighteen months beginning on the date of filing, or, if priority has been claimed, beginning on the date of priority; provided that at the request of the applicant the application may be published before the expiry of the period aforesaid.

(2) Subject to subsection (3), a patent application shall not be published if, before the termination of the technical preparation for publication, it has been finally refused or withdrawn or has been deemed to have been withdrawn.

(3) A patent application which forms the basis for a divisional application under section 24 shall be published with its divisional application unless it has already been published under subsection (1).

(4) The Controller shall advertise the date of publication of a patent application in the Journal.

(5) The Controller may cause to be omitted from the published patent application—

(a) Statements or other matter contrary to public order or morality;

(b) statements disparaging the products or processes of any particular person other than the applicant, or the merits or validity of applications or patents of any such person; provided that mere comparisons with the prior art shall not be considered disparaging per se.

Patents Act, 1992 - Section 88

88.—(1) After publication of a patent application under section 28 the Controller shall, on a request’s being made in the prescribed manner and on payment of the prescribed fee, give the person making the request such information as may be prescribed and permit him to inspect such documents, relating to the application or to any patent granted in pursuance of the application, as may be specified in the request subject, however, to any prescribed restrictions.

(2) Subject to subsection (3), until a patent application is published under section 28, documents or information constituting or relating to the application shall not, without the consent of the applicant, be published or communicated to any person by the Controller.

(3) Subsection (2) shall not prevent the Controller from—

(a) sending the European Patent Office information which it is his duty to send that office under the European Patent Convention: or

(b) publishing or communicating any prescribed bibliographic information about an unpublished patent application; or

(c) giving information as to whether an unpublished patent application has been either withdrawn of is deemed to be withdrawn.

Patents Act, 1992 - Section 94

94.—(1) A communication to which this section applies shall be privileged from disclosure in any proceeding (including a proceeding before the Controller or competent authority under the European Patent Convention or the Treaty) to the same extent as a communication between client and solicitor is privileged in any proceeding before a court in the State.

(2) This section applies to a communication—

(a) between a person, or person acting on his behalf and a solicitor or patent agent, or person acting on his behalf, or

(b) for the purpose of obtaining, or in response to a request for, information which a person is seeking for the purpose of instructing a solicitor or patent agent

in relation to any matter concerning the protection of an invention patent, design or technical information or any matter involving passing off.

(3) In this section “patent agent” means a person registered as a patent agent in the register of patent agents, a company or partnership lawfully practising as a patent agent in the State or a person or partnership who satisfies the condition mentioned in subsection (1) or (3) of section 125.

Patents Act, 1992 - Section 96

96.—(1) An appeal to the Court shall lie from any decision or order of the Controller other than a decision under section 22 (2) or section 28 (5).

(2) Any appeal under this Act which concerns a patent application which has not been published shall be heard in private.

(3) In any appeal under this Act the Controller shall be entitled to appear or be represented and be heard in support of his decision and shall appear if so directed by the Court.

(4) In any appeal under this Act the Court may exercise any power which could have been exercised by the Controller in the proceedings from which the appeal is brought.

(5) Rules of court for the conduct of appeals under this Act may include provisions for the appointment of scientific advisers to assist the Court, and for regulating the functions of such advisers; and the remuneration of any such scientific adviser shall be defrayed out of moneys provided by the Oireachtas.

(6) Save where otherwise provided in this Act, an appeal, except by leave of the Court, from an order or decision of the Controller shall not be entertained unless notice to the Court is given within the period of three months beginning on the date of the order or decision appealed against.

(7) An appeal to the Supreme Court from a decision of the Court under this section shall lie only on a question of law.

(8) In an appeal under this Act the Controller shall not be awarded or be ordered to pay costs.

Patents Act, 1992 - Section 101

101.—Except as provided by this Act or as prescribed by the Minister, reports of the Controller and officers of the Controller made under this Act or under any other enactment for the administration of which the Controller is responsible shall not be published or be open to public inspection and shall not be liable to production or inspection in any legal proceedings unless the Court or any officer having power to order discovery in such proceedings certifies that such production or inspection is desirable in the interests and ought to be allowed.

Patents Rules, 1992 - Rule 23

23. (1) The application as published in accordance with section 28 shall include the description, claims, drawings and abstract as filed. If before the termination of the technical preparations for publication of the application the claims have been amended pursuant to Rule 31, the new or amended claims shall be included in the publication in addition to the original claims

(2) The application as published shall where possible include the statement as to inventorship referred to in section 17 (2) and, if priority is claimed, the copy of the previous application referred to in section 26 (1). If these documents, including any necessary translations, are not published with the application, they shall be published as soon as practicable thereafter.

(3) The Controller may determine when the technical preparations for publication of the application are to be treated as having been completed.

Patents Rules, 1992 - Rule 64

64. (1) A request under section 88 (1) for information relating to any patent or patent application may be made—

(a) as to when the documents referred to in Rule 23 (2) or the specification of a patent have been published;

(b) as to when a search report prepared under section 29 has been published;

(c) as to the form of evidence submitted under section 30 (1);

(d) as to when a patent application has been withdrawn, deemed to be withdrawn, refused by the Controller or has lapsed;

(e) as to whether a patent is in force;

(f) as to when a patent lapsed;

(g) as to when an application for restoration of a patent has been filed:

(h) as to when any application or request is made or action taken involving an entry in the register or advertisement in the Journal, if the matter which is the subject of such application, request or action is specified.

(2) The Controller may, on request, furnish information in relation to—

(a) the registration of a design;

(b) the registration of a trade mark or the acceptance of an application for the registration of a trade mark.

(3) Any such request shall relate to one item of information only and shall be accompanied by the prescribed fee.

Patents Rules, 1992 - Rule 05

65. (1) After the date of publication of a patent application the Controller shall, in accordance with section 88 (1), upon request and subject to payment of the prescribed fee, permit documents filed or kept in the Office in relation to the application, or to any patent granted in pursuance of it, to be inspected at the Office. This provision shall not apply to a document which the Controller, consequent upon a request from a person filing or sending the document, directs shall be treated as confidential, or to any document sent to the Office for inspection and subsequent return to the sender.

(2) The following bibliographic data are prescribed for the purposes of section 88 (3)

(b)—

(a) the number of the patent application;

(b) the date of filing of the patent application and, where priority of a previous application is claimed, the date, state and file number of the previous application:

(c) the name of the applicant;

(d) the title of the invention as appearing in the request for grant

Trade Marks Act, 1996 - Section 43

43.—(1) When an application for registration has been accepted, the Controller shall cause the application to be published in the Journal.

(2) Any person may, within the prescribed time from the date of the publication of the application in the Journal, give notice to the Controller of opposition to the registration; and any such notice shall be given in writing in the prescribed manner, and shall include a statement of the grounds of opposition.

(3) Where an application has been published in the Journal, any person may, at any time before the registration of the trade mark, make observations in writing to the Controller as to whether the trade mark should be registered; and the Controller shall inform the application of any such observation.

(4)A person who makes observations as mentioned in subsection (3) shall not thereby become a party to the proceedings on the application

Trade Marks Act, 1996 - Section 70

70.—(1) After publication of an application for registration of a trade mark, the Controller shall on request provide a person with such information as may be prescribed and permit him to inspect such documents as may be prescribed relating to the application or to any registered trade mark resulting from it.

(2) A request for the purposes of subsection (1) must be made in the prescribed manner and be accompanied by the appropriate fee (if any).

(3) Before publication of an application for registration of a trade mark, documents or information constituting or relating to the application shall not be published by the Controller or communicated by the Controller to any person except—

(a) in such classes of case and to such extent as may be prescribed; or

(b) with the consent of the applicant;

but subject to the following provisions of this section.

(4) Where a person has been notified—

(a) that an application for registration of a trade mark has been made, and

(b) that the applicant will if the application is granted bring proceedings against that person in respect of acts done after publication of the application,

that person may make a request under subsection (1) notwithstanding that the application has not been published and that subsection shall apply accordingly

Trade Marks Act, 1996 - Section 91

91.—(1) This section applies to communications in respect of any matter relating to the protection of a trade mark or in respect of any matter involving passing off.

(2) Any communication to which this section applies—

(a) between a person and his registered agent, or

(b) for the purposes of obtaining or in response to a request for information

which a person is seeking for the purpose of instructing his registered agent, is privileged from disclosure in legal proceedings in the State in the same way as a communication between a person and his solicitor or, as the case may be, a communication for the purpose of obtaining or in response to a request for information which a person seeks for the purpose of instructing his solicitor.

(3) In subsection (2) “registered agent” means—

(a) a registered trade mark agent:

(b) a partnership entitled to describe itself as a firm of registered trade mark agents; or

(c) a body corporate entitled to describe itself as a registered trade mark agent.

National Standards Authority of Ireland Act, 1996 - Paragraph 5 of Second Schedule

Disclosure of information.

5. (1) Subject to subparagraph (3), a person shall not disclose any information obtained by that person—

(a) while performing duties as a member of the Board or of any committee appointed under this Act or as a member of staff of, or adviser or consultant to, the Authority, or

(b) as a member of or as a member of staff of any body consulted in pursuance of the provisions of this Act, while performing duties relating to any such consultation.

(2) A person who contravenes subparagraph (1) shall be guilty of an offence.

(3) Nothing in subparagraph (1) shall prevent—

(a) disclosure of information in a report made by the Authority (or on its behalf) to the Minister, or

(b) disclosure of information by the Authority or by a member of the Authority or by a member of any committee appointed under this Act for the purpose of a scheme of research and development or a scheme of acquisition of product and process technology

Competition Act, 1991 - Paragraph 9 of Schedule

9. (1) No person shall disclose information available to him by virtue of the powers of obtaining information conferred by this Act or by any other enactment conferring functions on the Authority or through being present at a meeting of the Authority held in private.

(2) Subparagraph (1) shall not apply to—

(i) a communication made by a member of the Authority in the execution of his functions under this Act, or

(ii) the disclosure of information in a report of the Authority or for the purpose of legal proceedings under this Act or pursuant to an order of a court of competent jurisdiction for the purposes of any proceedings in that court.

(3) If any person contravenes this paragraph he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or imprisonment for a period not exceeding six months or, at the discretion of the court, to both such fine and imprisonment

Competition Act, 2002 - Section 32

32.—(1) A person shall not disclose information that—

(a) comes into the possession of the Authority by virtue of the exercise by it of its powers under this Act to obtain information, or

(b) comes into the possession of the Authority in the course of a meeting of the Authority held in private at which he or she is present.

(2) Subsection (1) shall not apply to—

(a) a communication made by a member of the Authority, a member of staff of the Authority or an authorised officer in the performance of any of his or her functions under this Act, being a communication the making of which was necessary for the performance by the member or officer of any such function, or

(b) the disclosure of information in a report of the Authority or for the purpose of legal proceedings under this Act or pursuant to an order of a court of competent jurisdiction for the purposes of any proceedings in that court, or

(c) the disclosure by a member of the Authority, a member of staff of the Authority or an authorised officer to any member of the Garda Síochána of information which, in the opinion of the member or member of staff of the Authority or authorised officer, may relate to the commission of an offence (whether an offence under this Act or not).

(3) If any person contravenes subsection (1) he or she shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment.

(4) A person who suffers loss or harm as a result of a contravention of subsection (1) shall be entitled to bring proceedings against the person referred to in subsection (5) in any court of competent jurisdiction seeking one, or more than one as appropriate, of the following reliefs in respect of that loss or harm:

(a) relief by way of injunction or declaration,

(b) damages.

(5) The person mentioned in subsection (4) is—

(a) if the person who contravened subsection (1) is other than a member or a member of staff of the Authority or an authorised officer, that person,

(b) if the person who contravened subsection (1) is a member or a member of staff of the Authority or an authorised officer and the relief sought, or to the extent that the relief sought, in the proceedings is—

(i) relief referred to in subsection (4)(a), that person,

(ii) relief referred to an subsection (4)(b), the Authority.

(6) An action under subsection (4) shall be regarded as an action founded on tort.

(7) The Authority shall be entitled, in any proceedings, to the same privilege in respect of a communication to or by the Authority, any member of the Authority or any member of staff of the Authority as any Minister of the Government.

Competition Act, 2002 - Section 22(4)

22.—(1) In this section “appropriate date” has the same meaning as it has in section 19.

(2) Having considered a notification made to it, the Authority may decide that it shall carry out an investigation (in this section referred to as a “full investigation”) in relation to the merger or acquisition concerned.

(3) On completion of a full investigation in relation to the merger or acquisition concerned, the Authority shall make whichever of the following determinations it considers appropriate, namely that the merger or acquisition—

(a) may be put into effect,

(b) may not be put into effect, or

(c) may be put into effect subject to conditions specified by it being complied with. on the ground that the result of the merger or acquisition will or will not, as the case may be, be to substantially lessen competition in markets for goods or services in the State or, as appropriate, will not be to substantially lessen such competition if conditions so specified are compiled with.

(4) Where the Authority makes a determination under subsection (3), it shall reduce the determination to writing (and the determination in that form is referred to in paragraph (a) and subsection (7) as a “written determination”) and—

(a) furnish to the undertakings which made the notification a copy of the written determination within 4 months after the appropriate date, and

(b) publish the determination, with due regard for commercial confidentiality, within 1 month after the making of the determination.

(5) A determination under subsection (3)(c) that the merger or acquisition may be put into effect subject to specified conditions being complied with is referred to in this section as a “conditional determination”.

(6) A conditional determination shall include a condition requiring the merger or acquisition to be put into effect within 12 months after the making of the determination.

(7) A written determination under subsection (3) shall state the reasons for its making and shall include a report in relation to the full investigation.

(8) Before making a determination under subsection (3), the Authority shall have regard to any relevant international obligations of the State.

Competition Act, 2002 - Section 21(3)

21.—(1) In this section “appropriate date” has the same meaning as it has in section 19.

(2) In respect of a notification received by it, the Authority shall, within 1 month after the appropriate date, inform the undertakings which made the notification and any individual or any other undertaking from whom a submission concerning the notification was received of whichever of the following determinations it has made, namely—

(a) that, in its opinion, the result of the merger or acquisition will not be to substantially lessen competition in markets for goods or services in the State and, accordingly, that the merger or acquisition may be put into effect, or

(b) that it intends to carry out an investigation under section 22 in relation to the merger or acquisition.

(3) Where the Authority makes a determination referred to in paragraph (a) or (b) of subsection (2), it shall publish that determination, with due regard for commercial confidentiality, within 2 months after the making of the determination.

(4) If any of the undertakings which have made the notification concerned submits to the Authority proposals to which section 20(3) applies, then subsection (2) shall have effect as if “45 days” were substituted for “1 month” in that subsection.

Personal Injuries Assessment Board Act, 2003 - Section 73

73.—(1) Save as otherwise provided by law and subject to subsection (3), a person shall not, other than with the consent of the Board, disclose confidential information obtained by him or her while performing (or as a result of having performed) functions as—

(a) a member of the Board,

(b) a member of the staff of the Board,

(c) a member of a committee of the Board,

(d) an adviser or consultant to the Board engaged under section 80.

(2) A person who contravenes subsection (1) is guilty of an offence.

(3) Nothing in subsection (1) shall prohibit the disclosure of information by means of a report made to the Board or made by, or on behalf of, the Board to the Minister.

(4) In this section “confidential information” includes—

(a) information that is expressed by the Board or a committee of the Board, as the case may be, to be confidential either as regards particular information or as regards information of a particular class or description.

(b) proposals of a commercial nature or tenders submitted to the Board by contractors, consultants or any other person,

(c) information the disclosure of which would—

(i) identify a claimant or a respondent, or

(ii) make known the amount of an assessment that has been made in respect of a particular relevant claim.

(d) information obtained under section 28.

(5) A member of the Board or of a committee of the Board, if convicted of an offence under subsection (2) shall, on such conviction, cease to be and be disqualified from being such a member

Industrial Development (Science Foundation Ireland) Act, - Section 17

17.—(1) Save as otherwise provided by law and subsection (3), a person shall not, without the consent of the Board, disclose any confidential information obtained by him or her while performing (or as a result of having performed) duties as—

(a) a member of the Board,

(b) the Director General,

(c) a member of the staff of the Foundation,

(d) a member of a committee established under section 15, or

(e) an adviser or consultant to the Foundation or an employee of such person whilst performing duties relating to such advice or consultation.

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 2.000.

(3) Nothing in subsection (1) shall prevent disclosure of information in a report made to the Foundation or on behalf of the Foundation to the Minister.

(4) In this section “confidential information” includes information that is expressed by the Foundation or a committee to be confidential either as regard particular information or as regards information of a particular class or description.

Industrial Development (Enterprise Ireland) Act, 1998 - Section 16

16.—(1) Save as otherwise provided by law and subsection (3), a person shall not, without the consent of the Board, other than in respect of paragraph (f), disclose any information obtained by him or her while performing (or as a result of having performed) duties as—

(a) a member of the Board,

(b) the chief executive officer,

(c) a member of the staff of the Agency or of Forfás seconded to the Agency,

(d) a member of a committee established under section 14,

(e) an adviser or consultant to the Agency or an employee of such person whilst performing duties relating to such advice or consultation, or

(f) a member of the board or staff of, or adviser or consultant to or an employee of such person relating to such advice or consultation, any subsidiary, without the consent of the board of the subsidiary.

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

(3) Nothing in subsection (1) shall prevent disclosure of information in a report made to the Agency or on behalf of the Agency to the Minister.

Industrial Relations Act 1990 - Section 25(6)

25.—(1) The Commission shall have general responsibility for promoting the improvement of industrial relations and shall—

(a) Provide a conciliation service;

(b) Provide an industrial relations advisory service;

(c) prepare codes of practice relevant to industrial relations after consultation with unions and employer organisations;

(d) offer guidance on codes of practice and help to resolve disputes concerning their implementation;

(e) appoint equality officers of the Commission and provide staff and facilities for the equality officer service;

(f) select and nominate persons for appointment as rights commissioners and provide staff and facilities for the rights commissioner service;

(g) conduct or commission research into matters relevant to industrial relations;

(h) review and monitor developments in the area of industrial relations;

(i) assist joint labour committees and joint industrial councils in the exercise of their functions.

(2) The Commission may at the request of one or more parties to a trade dispute or on its own initiative offer the parties its appropriate services with a view to bringing about a settlement.

(3) Except where there is specific provision for the direct reference of trade disputes to the Labour Court, trade disputes shall first be referred to the Commission or to its appropriate services.

(4) The Commission may, if it thinks fit, on request or on its own initiative, provide for employers, employers’ associations, workers and trade unions such advice as it thinks appropriate on any matter concerned with industrial relations.

(5) The functions referred to in subsection (1) (a), (b) or (d) shall be performed on behalf of the Commission by members of its staff duly appointed by the Commission.

(6) The Commission, a member of the Commission or any of its staff shall not include in any report any information obtained by it in the course of any proceedings before it under this Act as to any trade union or as to the business carried on by any person which is not available otherwise than through evidence given at the proceedings (including conciliation conferences and advisory meetings) without the consent of the trade union or person concerned, nor shall any member of the Commission or any of its staff or any person concerned in the proceedings, without such consent, disclose any such information.

(7) Subsection (6) shall not apply to a report to the Court under section 26 (1) (a) or a notice to the Court under section 26 (3) (a) or a report under section 48 (3).

(8) Subsection (6) is without prejudice to section 8(2) of the Anti-Discrimination (Pay) Act, 1974, or section 14 of the Industrial Relations Act. 1969.

Transnational Information and Consultation of Employees Act, 1996 - Section 15

15.—(1) Subject to subsection (2) and section 20, a person who is or at any time was—

(a) a member of—

(i) a Special Negotiating Body,

(ii) a European Employees’ Forum, or

(iii) a European Works Council,

or

(b) an employees’ representative to an information and consultation procedure,

shall not reveal any information expressly provided in confidence to him or her or to the Body, Forum or Council.

(2) A person may, in accordance with his or her duties as a member, expert or employees’ representative to the procedure, disclose such information—

(a) to the Body, Forum or Council of which he or she is or was then a member,

(b) to another employees’ representative to the procedure, or

(c) to the member, body or person he or she is or was then employed to advise.

(3) The central management may withhold from a Special Negotiating Body, European Employees’ Forum, European Works Council or in connection with an information and consultation procedure, information that it claims is commercially sensitive—

(a) where it can show that the disclosure would be likely to prejudice significantly and adversely the economic or financial position of an undertaking or group of undertakings or breach statutory or regulatory rules, or

(b) where the information is of a kind that meets objective standards for determining that it should be withheld agreed between the central management and the Special Negotiating Body, European Employees’ Forum. European Works Council or the employees’ representatives to an information and consultation procedure.

(4) In this section “member” and “employees representative to an information and consultation procedure” includes a person who at any time as an expert, assists or assisted such a member or person.

Prices Act, 1958 - Section 25

25.—(1) No person shall disclose information available to him by virtue of the powers of obtaining information conferred on him by this Act or through being present at a meeting of an Advisory Committee held in private.

(2) Subsection (1) of this section does not apply to—

(a) a communication made by a member of an Advisory Committee or an authorised officer in the execution of his duties under this Act, or

(b) the disclosure of information in a report of an Advisory Committee or for the purpose of legal proceedings under this Act.

(3) If any person contravenes subsection (1) of this section he shall be guilty of an offence under this section.

18 January 2005

Ms. Breda Burke,

Clerk to the Committee,

Joint Committee on Finance and the Public Service,

Leinster House,

Dublin 2.

Dear Ms. Burke,

I have been asked by Mr. Dick Roche, T.D., Minister for the Environment, Heritage and Local Government to submit a report as required under Section 32(3) of the Freedom of Information Act, 1997.

Public Access to Information

This Department has, for some time and before the advent of the Freedom of Information Act, supported the principle of public access to information relating to it’s business. Through the introduction of a number of legislative and other measures it has promoted public access to information held by the Department and organisations under its aegis and other public authorities, particularly in the areas of planning development and environmental protection.

Legislative measures, which predate FOI, include the following:

•Environmental Protection Agency Act, 1992,

•Local Government (Planning and Development) Acts, 1963 to 1993 and Local Government (Planning and Development) Regulations, 1994 and 1995, all of which deal with access to documents relating to planning applications and appeals,

•Access to Information on the Environment Regulations, 1993 under which the public gained access to environmental information held by public authorities.

•Administrative measures have included the establishment of ENFO; the environmental information service and the ever-increasing range of periodicals, information leaflets and once off publications produced by the Department in electronic and hard copy.

Provisions relating to non-disclosure of records proposed for retention

It is very exceptional that legislation sponsored by this Department would include provisions that authorise or require non-disclosure of records. There are four current provisions as follows:

•Article 10 of the Genetically Modified Organisms (Deliberate Release) Regulations 2003

•Article 9 of the Genetically Modified Organisms (Contained Use Regulations) 2001

•Section 14 of the Electoral Act, 1997

•Section 36 of the Radiological Act 1991

Details of the four such current provisions, including the rationale for their retention, are set out in the attached appendix.

Amendments to Third Schedule

The Department have agreed to include the following provisions in the third Schedule of the FOI Act

•Section 80 of the Local Government Act 2001

•Section 16 of the Air Pollution Act 1987

•Section 113 of the Planning & Development Act 2000 - This provision will replace Section 13 of the Local Government (Local Government) Act 1983

•Section 13 of the Housing (Miscellaneous Provisions) Act 2002

Yours sincerely,

Michael Canny

Assistant Secretary

Enactment that authorises or requires non-disclosure of a record

Opinion as to whether the provisions should be amended, repealed or allowed to continue in force

The above provisions should not be amended or repealed and should be allowed to continue in force.

Whether the provisions should be included in column (3) of the Third Schedule of the FOI Act

The above provisions should not be included in column 3 of the Third Schedule.

Reasons for the opinion outlined above

Genetically Modified Organisms Regulations, 1994 have been repealed and replaced by the Genetically Modified Organisms (Contained Use) Regulations 2001 (S.I. 73 of 2001) and the Genetically Modified Organisms Regulations (Deliberate Release) Regulations 2003 (S.I. 500 of 2003). The provisions of article 9 of the 1994 regulations have been restated in articles 9 and 10 of the 2001 and the 2003 regulations respectively.

Under the articles in question the Environmental Protection Agency (as competent authority under the regulations) is obliged to treat certain information as confidential.

The articles give statutory effect in Ireland to specific provisions of Internal Market based EU Directives - Article 19 of 90/220/EEC (as amended by 98/81/EC and Article 25 of 2001/18/EC). The provisions in the regulations are procedural in terms of the handling of information which is considered by notifiers to be commercially sensitive or subject to the protection of intellectual property rights. Overall the intention of the EU and national legislation is to maximise access to information on contained use of GMOs and deliberate releases of GMOs to the environment. In this regard notifiers are required to provide verifiable justification for any requests for information to be treated as confidential.

Enactment that authorises or requires non-disclosure of a record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act

The above provision should not be included in column 3 of the Third Schedule.

Reasons for the opinion outlined above

Section 14 of the Electoral Act 1997 provides that no person serving as a member of a constituency commission or whose services are made available to a commission may disclose information while a member of or while working for the commission. The prohibition continues to apply to commission members who are no longer serving and after a commission stands dissolved.

The section protects information in relation to proposals for constituency revisions or any other information relating to the business of a commission being made public without the authorisation of a commission. The prohibition recognises the sensitive nature of the work involved and the intense interest in details relating to the deliberations of a commission during a revision.

Appendix

Enactment that authorises or requires non-disclosure of a record

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Whether the provision should be included in column (3) of the Third Schedule of the FOI Act

The above provision should not be included in column 3 of the Third Schedule.

Reasons for the opinion outlined above

This provision relates directly to obligations under the International convention of the physical protection of Nuclear Material.

In particular, Article 6 of the international convention of the physical protection of Nuclear Material states that “States parties shall take appropriate measures consistent with their national law to protect the confidentiality of any information which they receive in confidence by virtue of the provisions of this convention from another State Party or through participation in an activity carried our for the implementation of this Convention. If States Parties provide information to international organisations in confidence, steps shall be taken to ensure that the confidentiality of such information is protected.

25 June 2004

Mr Seán Fleming T.D.

Chairman

Joint Committee on Finance and

the Public Service

Leinster House

Dublin 2

Re: Report under Section 32(3) of the Freedom of Information Acts 1997 and 2003

Dear Chairman

I forward herewith my second report in accordance with Section 32(3) of the Freedom of Information Acts 1997 and 2003.

Yours sincerely,

Charlie McCreevy T.D.

Minister for Finance

SECOND REPORT BY

THE MINISTER FOR FINANCE

TO THE JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE UNDER SECTION 32(3) OF THE FREEDOM OF INFORMATION ACTS

1997 AND 2003

June 2004

CONTENTS

Description of Provision

Section 33AK (1)(a) and (b) of the Central Bank Act 1942, as inserted by Section 26 of the Central Bank and Financial Services Authority of Ireland Act 2003, places an obligation on various listed persons not to disclose confidential information concerning the business of any body corporate or incorporate that has come to the person’s knowledge through the person’s office or employment with the Bank, or any matter arising in connection with the performance of the functions of the Bank or the exercise of its powers if such disclosure is prohibited by the Rome Treaty, the ESCB Statute or the Supervisory Directives. The listed persons are the Governor, Directors, Members of the Authority, Chief Executive, Consumer Director, Registrar of Credit Unions, officials or employees and consultants or auditors - and all former holders of these positions.

Section 33 AK (3), however, requires the Bank, subject to subsection (1)(b), to report to the relevant authority - for example, the Gardai, the Revenue Commissioners the Director of Corporate Enforcement or the Director of Consumer Affairs - if it comes across any information that leads the Bank to suspect that a criminal offence - under statute or otherwise - or a breach of the Companies Acts or of the Competition Act has been committed by the supervised entity. The Bank need not, as a general rule, report if it is satisfied that the supervised entity concerned has already reported the information concerned to the relevant body.

Section 33AK(4) provides that if circumstances arise where the Bank comes across information which it believes may be significant for an authority concerned with enforcing the law but which it is prevented from reporting directly to that authority because of the confidentiality provisions laid down in EU law, the requirement in the Act is not to disclose such information. In such a case, the Bank must put both the supervised entity and the enforcement authority concerned formally on notice that it has identified information relevant to that authority. In addition, the supervised entity concerned must disclose the fact that it has been put on notice by the Bank in the directors annual report.

This provision was introduced simultaneously with the repeal of Section 16 of the Central Bank Act 1989, which was previously the main provision concerning the non-disclosure of information by the Central Bank.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act 1997

The above provision should not be included in column (3).

Reasons for Opinion

Legislation in this area had previously been based on a premise that information could only be shared among State authorities in very limited circumstances. It is right that, as a general rule, banking and other supervisory authorities should not abuse their privileged access to confidential information by revealing this information to third parties. This general principle is enshrined in the EU Directives governing the supervision of financial institutions throughout the Single Market.

The Directives, however, also recognise that this principle may be over-ridden where there are broader public policy issues involved - specifically, where breaches of the criminal law or of general company law arise or where it is necessary to share information with other supervisory authorities.

The provision which prohibits the disclosure of confidential information in certain cases is a direct result of requirements imposed on the Bank by the Rome Treaty, the ESCB statute or the Supervisory Directives of the EU. The type of information concerned is that which is obtained which leads the Bank to suspect that a criminal offence may have been committed by a supervised entity, or that a supervised entity has contravened a provision of an particular Act. It is not information to which the general public would be granted access.

Confidentiality is a core element of effective financial regulation. The provisions on non-disclosure are vital to the maintenance of the financial sector’s confidence in the Bank and, in turn, the public’s confidence in the operation of the financial sector.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provision

The provision broadly provides that information obtained by the Ombudsman during an investigation may be used only for (a) that investigation and any related statements or reports and (b) proceedings against the Ombudsman or her staff under the Official Secrets Act. The Ombudsman and her staff cannot be called upon to disclose such information in any other proceedings. The provision also provides that a Minister of the Government or the Revenue Commissioners may request the Ombudsman not to disclose information obtained by her by giving notice in writing that such disclosure would, for stated reasons, be prejudicial to the public interest. The Ombudsman must comply with such a request.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be repealed, but the provision should be amended in so far as subsection 9(2) is concerned, i.e. that a Minister of the Government or the Revenue Commissioners may direct the Ombudsman not to disclose in the public interest certain documents or information obtained by her provided the withholding of such documents or information is permitted by the Freedom of Information Act.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

It is considered that the provision that information obtained by the Ombudsman during an investigation should not be disclosed, except in very limited circumstances, is necessary for the continued proper discharge of the Ombudsman’s functions. It is essential that the Ombudsman in the carrying out of her investigations is provided with information to the greatest extent possible. The provision facilitates the making available of all relevant information to the Ombudsman which, without such stricture in place, might not be forthcoming. Indeed the Freedom of Information Act recognises the need for special protection in relation to investigations of examinations carried out by the Ombudsman. Section 46(1)(c) of the Freedom of Information Act provides that the Act does not apply to a record relating to an investigation or examination carried out by the Ombudsman under the Ombudsman Act 1980, other than where such a record was created before the commencement of the investigation or examination or is a record relating to the general administration of the Office of the Ombudsman. Prohibitions on disclosure of information obtained in the course of investigations are a feature in Ombudsman legislation generally.

Subsection 9(2), effectively provides that a Minister of the Government or the Revenue Commissioners may direct the Ombudsman not to disclose in the public interest certain documents or information obtained by her. Such a general absolute prohibition is considered not to be in keeping with the spirit of the Freedom of Information Act. Indeed a record currently exempted in the hands of the Ombudsman under subsection 9(2), could be subject to FOI in the relevant department. It is considered that subsection 9(2) should be amended to align it with the Freedom of Information Act.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provision

Section 16(2) of the Trustee Savings Banks Act 1989 specifies that the Minister for Finance “may by regulations, made after consultation with the Central Bank and the trustee savings banks for the time being carrying on business, amend the Second Schedule and that Schedule shall have effect subject to any regulations under this subsection for the time being in force”.

The Second Schedule specifies matters to be provided for by the rules of a trustee savings bank. Paragraph 15 of the Second Schedule states:

“That the officers of the bank be prohibited from disclosing any information regarding the affairs or business of the bank or depositors with or persons borrowing from the bank without the authority of a manager or a committee or other body referred to paragraph 4; and that trustees or any such committee or other body as aforesaid be prohibited from disclosing any such information as aforesaid except where it is necessary to do so for the purposes of the conduct, management or direction of the business of the bank or for the purposes of proceedings in any court or other tribunal”.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

The standard of confidentiality which Paragraph 15 prescribes is that which applies generally in the banking sector. As such, this provision is necessary for the proper functioning of trustee savings banks, particularly in relation to client confidentiality and the overall competitive position of the banks.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provision

The Waiver of Certain Tax, Interest and Penalties Act 1993 provided for a tax amnesty where certain declarations were made and tax was remitted to the “Chief Special Collector” on or before 14 January, 1994. One of the main features of the 1993 amnesty was a special confidentiality requirement whereby the Chief Special Collector was precluded from disclosing any information acquired in the course of administering the amnesty, except for validation of certificates and the provision of aggregate information for overall reporting purposes. Section 7 of the Act sets out these confidentiality requirements and the form of secrecy declaration to be made by the Chief Special Collector.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

Persons availing of the 1993 amnesty did so on the basis of the clear confidentiality conditions then in place and the amnesty was “sold” on that basis. Given the sensitivities attached to this amnesty it would not be appropriate to lessen the standard of confidentiality at this stage. Notwithstanding that the deadline for availing of the amnesty was January 1994, the legislation cannot be repealed as the Chief Special Collector’s role (in validating certificates etc.) is an ongoing one.

Enactment that authorises or requires non-disclosure of a record

Description of Provision

Section 35 of the Ethics in Public Office Act 1995 makes it an offence for a person to disclose information received under the Act or through being present at a private sitting of the Standards in Public Office Commission or Select Committee on Members’ Interests of either House during an investigation for a possible breach of the Act. However, the disclosure of information is allowed in certain circumstances as follows:

•Subsections 2(a) and (b) permit disclosure of information in the public interest. Disclosure is also provided for where the recipient of a statement of interests under the Act is of the opinion that information suggests a conflict or an undisclosed interest of the donor and the public interest.

•Subsection 2(c) enables disclosure of information in the performance of functions or, in the public interest by a Minister, Secretary to the Government, a Select Committee, the Standards in Public Office Commission or a “relevant authority” (normally the Head of a Government Department) or pursuant to a court order.

•The provisions of subsection 2(d) would most likely be employed to enable individuals to publicly clear their good name where, following an investigation, they have been found not to be in contravention of the Act. Thus Members of the Oireachtas and Office Holders might seek to have such information laid before the Houses. It could also arise that other persons covered by the Act (e.g. designated directors, holders of designated positions and senior special advisers) might similarly publicise a report which found that they were not in contravention of the Act.

Opinion as to whether the provision should be amended repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

The provision seeks to strike a balance between:

•a person’s right to privacy and his or her good name,

•securing the effectiveness of the process of investigations/hearings.

•the need for transparency and accountability.

The essential purpose of the provision is to secure the process of and effectiveness of investigations and appropriately observe privacy rights. This is fully consistent with constitutional provision and the public interest. It must be borne in mind that, where breaches of the Ethics in Public Office Act come to light, full publication of the findings of the Commission/Committee arises. The provision is necessary for the proper functioning of the Act. Prohibitions on disclosure of information concerning investigations are a feature of legislation relating to investigative bodies.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provision

Section 5(3) of the Public Service Management Act 1997 states as follows:

“(3) The Freedom of Information Act, shall not apply to a record containing -

(a)a strategy statement that has not been approved under subsection (1)(c),

(b)a preliminary or other draft of the whole or part of the material contained in a strategy statement,

(c)the unamended versions of a strategy statement that is approved under subsection (1)(c) with amendment, or

(d)a direction under section 7 in connection with the obligations of the Secretary General of a Department or Head of a Scheduled Office under section 4(1)(b) or 5(1),

during the period of 5 years immediately following the creation of the “record.”

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

This is a time bound provision to protect key high level deliberations in a public body. It parallels the protection provided in Section 19 of the Freedom of Information Act and is appropriate having regard to the sensitivity of the issues involved. The provision is consistent with Section 19 of the Comptroller and Auditor General (Amendment) Act 1993 and Section 16 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, which restricts the expression of an opinion by a civil servant on the merits, or the merits of the objectives, of Government policy.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provision

Section 12 of the Disclosure of Certain Information for Taxation and Other Purposes Act 1996 (subsequently incorporated as Section 859 of the Taxes Consolidation Act 1997) provides for anonymity for authorised officers exercising or performing powers or duties under the Revenue Acts in pursuance of the functions of the Criminal Assets Bureau (CAB). The Section, in particular, provides that such officers are not required to provide or show any written authority or warrant of appointment. However, officers relying on this exclusion must be accompanied by a member of the Garda Siochana who shall identify himself/herself and state that he/she is accompanied by an authorised officer. The Section also provides that in any proceedings arising out of the exercise of powers in pursuance of the functions of the CAB, any documents shall not reveal the identity of an authorised officer. An Appeal Commissioner or a judge may direct that evidence may be given “out of sight” by an authorised officer where there are public interest grounds.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

Revenue officers working in the CAB may be targeted and threatened by criminal elements if their identity became known. Given the nature of the work of CAB, and the potential risks to non-Garda bureau officers and their families, it is essential that these officers should have anonymity. The provision is in keeping with the spirit of the Freedom of Information Act which provides for the non-disclosure, in certain circumstances, of the name and designation of a person in a public body where disclosure could prejudice the safety or well-being of the person concerned, and of records which could reasonably be expected to facilitate the commission of an offence.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provisions

Section 826 of the Taxes Consolidation Act 1997 provides for the making of double taxation relief orders (enacted as Statutory Instruments) to give effect to agreements with other countries for the relief of double taxation. Such agreements generally contain an article allowing for the exchange of information and the provision of administrative assistance, which is relevant for the carrying out of the provisions of the agreement or of the domestic laws of the Contracting States concerning the taxes covered by the agreement. Where information is provided to the Revenue Commissioners under this article (as the competent authority under the agreement), there are usually secrecy provisions which require that any information received under the article shall be treated as secret in the same manner as information obtained under the domestic laws of the State and shall be disclosed only to persons and bodies involved in the assessment, collection or administration of tax or the determination of appeals. The exchange of information article goes on to authorise disclosure of the information received in public court proceedings or in judicial decisions.

Statutory Instruments have been made which give legal effect to agreements and protocols with some 42 countries. A copy of Article 26 from the Double Taxation Relief (Taxes on Income and Capital Gains) (Republic of India) Order, 2001 [S.I. No. 521 of 2001] is attached as a typical example.

Opinion as to whether the provisions should be amended, repealed or allowed to continue in force

Double Taxation Relief Orders’ non-disclosure provisions should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provisions should be included in column (3) of the Third Schedule of the Freedom of Information Act

Double Taxation Relief Orders’ non-disclosure provisions should not be included in column (3).

Reasons for Opinion

Orders’ non-disclosure provisions are part of international agreements. It would be inappropriate to take unilateral action which might weaken any secrecy provision negotiated bilaterally with the countries in question. The non-disclosure provisions

fairly wide range of persons involved in the assessment, collection or administration of tax and the hearing of appeals e.g. tax officials, taxpayers and their advisors, judges, legal counsel, etc.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provisions

Sections 16 and 22 concern protection of privacy of certain meetings of Oireachtas Committee members and specific restrictions on the Freedom of Information Act.

Section 16 provides that anything said at meetings of Oireachtas Committees not held in public or any documents or records prepared at or for such meetings cannot be disclosed without the consent of the committee Chairman. Section 22 exempts records relating to examinations and investigations carried out by the Comptroller and Auditor General or an auditor, under the Special Provisions Act from the Freedom of Information Act, except for those records created before the beginning of the investigation or those relating to the general administration of the office of the Comptroller and Auditor General.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provisions should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provisions should not be included in column (3).

Reason for Opinion

The provisions are required to facilitate the work of Oireachtas Committees and of examinations and investigations carried out under the Special Provisions Act. Preserving the confidentiality of records and proceedings of meetings of Oireachtas Committees not held in public, subject to the agreement of the Committee’s Chairman to their release, as is done in Section 16, is a practical step. Section 22, merely extends to records relating to an examination or investigation carried out under the Special Provisions Act, the same protection as is afforded under Section 46(1)(c) of the Freedom of Information Act, to records relating to the normal audits, inspections or examinations carried out by the Comptroller and Auditor General.

Description of Provision

Section 13 of the National Pensions Reserve Fund Act 2000 prohibits the disclosure of confidential information obtained by a person while performing duties as a commissioner or member of the staff of the Manager or a member of a committee or an investment manager or a custodian or a consultant or an adviser engaged by the Commission, unless such disclosure is duly authorised by the Commission or otherwise provided for by law.

The provision does not apply to disclosure of information to the National Pensions Reserve Fund Commission, the Manager of the Fund, the Minister for Finance, or the Revenue Commissioners or the Garda Síochána where there are reasonable grounds to suspect malpractice, fraud, tax evasion or other irregularity.

A person who contravenes the provision shall be guilty of an offence and shall be liable to a fine or to imprisonment or to both.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in column (3).

Reasons for Opinion

The purpose of section 13 of the National Pensions Reserve Fund Act 2000 is to allow the Fund to operate in a commercial environment in fulfillment of its mandate. This involves developing and monitoring investment strategies that will secure the optimal total financial return on the substantial sums invested by the Fund, as is required by the legislation.

It would be unhelpful to this mandate if the Fund or its managers were required to provide information on, for example, research or commercial data compiled in arriving at investment decisions, or documents which formed the basis for such decisions.

Clearly, there are extremely sensitive commercial considerations involved, whose importance can be expected to increase as the size of the Fund’s operations increases.

It is also noted that, section 13 of the National Pensions Reserve Fund Act 2000 was enacted after the Freedom of Information Act had been in place for several years. The section applies only to confidential information (as defined in the section) and not to information generally. It is therefore, limited in its application.

It is considered that section 13 of the National Pensions Reserve Fund Act 2000 is required to facilitate the achievement of the fundamental objectives of the legislation. It should, therefore, neither be amended nor repealed, nor should it be included in column (3) of the Third Schedule to the Freedom of Information Act.

Enactment that Requires Non-disclosure of a Record

Description of Provision

Section 23 of the Ordnance Survey Ireland Act 2001 prohibits the disclosure of confidential information obtained by a person while performing duties as a member of the Board or a member of staff of, or an adviser or consultant to, OSI, or a director, a member of the staff of, or an adviser or consultant to, a subsidiary, unless such disclosure is duly authorised or otherwise provided for by law.

A person who contravenes the provision shall be guilty of an offence and shall be liable to a fine.

Opinion as to whether the provision should be amended repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provisions should be included in column (3).

Reasons for Opinion

To allow the OSI to undertake its commercial activity it is essential that the section 23 remains in force.

However, section 23 could be included in column (3) of the Third Schedule of the Freedom of Information Act, for the purposes of FOI.

Enactment that Authorises or Requires Non-disclosure of a Record

Description of Provision

Section 18 of the National Development Finance Agency Act 2002 provides for a prohibition on unauthorised disclosure of confidential information unless duly authorised by the Agency or otherwise provided by law. The prohibition applies to members of the Board, the Chief Executive Officer, members of the staff of the NTMA, and advisers or consultants to the Agency or the NTMA, or employees of such persons in relation to confidential information obtained while carrying out duties under the Act.

The provision does not apply to the disclosure of information to the Board, the Chief Executive Officer or the Minister for Finance.

A person who contravenes the provision shall be guilty of an offence and shall be liable to a fine or to imprisonment or to both.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed and should be allowed to continue in force.

Opinion as to whether the provision should be included in column (3) of the Third Schedule of the Freedom of Information Act

The above provision should not be included in coloumn (3).

Reason for Opinion

The National Development Finance Agency was established to advise State Authorities on the optimal means of financing public investment projects, to raise funding for projects where necessary, to advance moneys for the purpose of financing public investment projects and to establish special purpose companies, where appropriate, for the purpose of financing projects. The rationale behind its establishment was to have available to State Authorities undertaking Public Private Partnerships and other infrastructure projects a centrally-resourced financial advisory service which would be more economic than buying in private sector expertise on a piecemeal basis. The overriding objective in all instances is to obtain value for money for the Exchequer.

The purpose of section 18 of the National Development Finance Agency Act 2002 is to allow the Agency to operate in a commercial environment in fulfilment of its mandate. This involves developing and monitoring financing strategies that will ensure that the Exchequer obtains value for money in all instances.

It would be unhelpful to this mandate if the Agency were required to provide information on, for example, research or commercial data compiled in arriving at financing decisions, or documents which formed the basis for such decisions. Clearly, there are extremely sensitive commercial considerations involved, whose importance can be expected to increase as the Agency’s operations increase.

It is also noted that section 18 of the National Development Finance Agency Act 2002 was enacted after the Freedom of Information Act had been in place for several years. The section applies only to confidential information (as defined in the section) and not to information generally. It is, therefore, limited in its application.

it is considered that section 18 of the National Development Finance Agency Act 2002 is required to facilitate the achievement of the fundamental objectives of the legislation. It should, therefore, neither be amended nor repealed, nor should it be included in column (3) of the Third Schedule to the Freedom of Information Act.

ANNEX - Text of Relevant Sections of Enactments

Secrecy of Information.

9.-(1) Information or a document or thing obtained by the Ombudsman or his officers in the course of, or for the purpose of, a preliminary examination, or investigation, under this Act shall not be disclosed except for the purposes of—

(a)the examination or a investigation and of any statement report or notification to be made thereon under this Act, or

(b)any proceedings for an offence under the Official Secrets Act, 1963, alleged to have been committed in respect of information or a document or thing obtained by the Ombudsman or any of his officers by virtue of this Act,

and the Ombudsman or his officers shall not be called upon to give evidence in any proceedings (other than such proceedings as aforesaid) of matters coming to his or their knowledge in the course of a preliminary examination, or an investigation, under this Act.

(2)(a) A Minister of the Government may give notice in writing to the Ombudsman, with respect to any document. information or thing specified in the notice, or any class of document, information on thing so specified, that, in the opinion of the Minister of the Government the disclosure (other than to the Ombudsman or officers of the Ombudsman) of that document, information or thing or of documents, information or things of that class. would, for the reasons stated in the notice, be prejudicial to the public interest.

(b)The Revenue Commissioners may give notice in writing to the Ombudsman, with respect to any document. information or thing in their power or control specified in the notice, or any class of such document, information or thing so specified, that in the opinion of the Revenue Commissioners the disclosure (other than to the Ombudsman or officers of the Ombudsman) of that document, information or thing or of documents, information or things of that class, would, for the reasons stated in the notice, be prejudicial to the public interest.

(c)Where a notice is given under this subsection, nothing in this Act shall be construed as authorising or requiring the Ombudsman or any officer of the Ombudsman to communicate to any person or for any purpose any document, information or thing specified in the notice or any document, information or thing of a class so specified.

Rules of trustee savings bank.

(b)The Central Bank shall—

(c)Without prejudice to the generality of paragraph (a), rules under that paragraph shall make provision in relation to the matters for the time being standing specified in the Second Schedule.

(2) The Minister may by regulations, made after consultation with the Central Bank and the trustee savings banks for the time being carrying on business, amend the Second Schedule and that Schedule shall have effect subject to any regulations under this subsection for the time being in force.

(3) The following provisions shall have effect in relation to rules under this section of a trustee savings bank:

(a)the trustees, managers and other officers of the bank shall comply with the rules and the business of the bank shall be carried on in accordance with the rules,

(b)a copy of the rules shall be given to a depositor of the bank on request at any office of the bank,

(c)a copy of the rules shall be made available for inspection by depositors of the bank at each office of the bank during the times at which the bank is open to the public for business,

(d)in proceedings in any court or tribunal, production of a document purporting to be a copy of the rules and to be certified by an officer of the bank to be a true copy of the rules shall be evidence of the rules unless the contrary is shown.

(4) A person who contravenes subsection (3) (a) shall be guilty of an offence.

(5) Rules of a former bank in force immediately before the commencement of this section shall continue in force for the period of 6 months immediately after such commencement and may be amended or revoked during that period by the trustees of the trustee savings bank concerned as if made pursuant to this section and shall, during the said period, be deemed to comply with the provision of this Act.

Section 16.

SECOND SCHEDULE

Matters to be provided for by the Rules of a Trustee Savings Bank

1. The name of the trustee savings bank.

2. The manner of appointment and removal of trustees of the bank.

3. The appointment of at least 2 persons (in this Schedule referred to as “managers”) who shall conduct, manage and direct generally the business of the bank and the manner of their appointment and removal.

4. The manner of appointment and removal of the members of any committee or other body established for the purposes of the supervision, management or direction generally of the business of the bank.

5. The powers, functions and duties of the trustees and managers and any committee or other body of the bank referred to in paragraph 4.

6. The manner in which moneys received by a trustee on account of or for the use of the bank are to be disposed of.

7. That a notice approved of by the Central Bank specifying the services provided by the bank shall be displayed at each office of the bank open to the public for the transaction of the business of the bank in a position where it can be read by all the members of the public entering the office.

8. That a trustee shall not derive any benefit from the bank other than any honoraria paid pursuant to section 20.

9. The calling and holding of meetings of trustees and the procedure to be followed at such meetings.

10. The manner in which funds of the bank are to be raised and the specification of any limit on their amount.

11. The purposes to which the funds of the bank are to be applied and the manner in which they are to be invested.

12. The manner in which deficits of the bank are to be ascertained and provided for.

13. The manner of appointment and removal, and the remuneration, of an auditor of the bank.

14. The manner in which the bank may be closed or dissolved.

15. That the officers of the bank be prohibited from disclosing any information regarding the affairs or business of the bank or depositors with or persons borrowing from the bank without the authority of a manager or a committee or other body referred to in paragraph 4; and that trustees or any such committee or other body as aforesaid be prohibited from disclosing any such information as aforesaid except where it is necessary to do so for the purposes of the conduct, management or direction of the business of the bank or for the purpose of proceedings in any court or other tribunal.

Confidentiality.

7.—(1) In this section—

“declaration of confidentiality” means the declaration of confidentiality contained in the Schedule to this Act;

“special collection function” means any function or duty related to—

(a)the receipt and retention of declarations referred to in section 2 (3) (a) or 3 (6) (b),

(b)the receipt, recording and lodgement of—

(i)settlement amounts, or

(ii)so much of any payment or remittance referred to in section 3 (6) (a) as is referable to value-added tax, or

(c)the issue and recording of certificates referred to in section 2(4) or 3 (6) (c),

which could result in the person or persons discharging that function or performing that duty acquiring, or having access to, any information in respect of such declarations, amounts or certificates, and a reference to the discharge of a special collection function shall be construed as a reference to the discharge of such a function or performance of such a duty;

“special collector” means any officer or employee of the Revenue Commissioners who—

(a)has been nominated by the Revenue Commissioners to discharge a special collection function, and has not had his nomination revoked, and

(b)has made and subscribed the declaration of confidentiality.

(2) (a)Special collection functions may only be discharged by special collectors.

(b)Every person nominated by the Revenue Commissioners to be a special collector shall, upon making and subscribing to the declaration of confidentiality, become a special collector.

(c)Declarations of confidentiality shall be made before a peace commissioner or other person duly authorised to take and receive statutory declarations.

(3) (a)Special collection functions shall be under the control and direction of a special collector, to be known as and is referred to in this Act as “the Chief Special Collector”, who is designated to be such by the Revenue Commissioners.

(b)Whenever there is no Chief Special Collector, the Revenue Commissioners shall designate as soon as is practicable thereafter a special collector to be the Chief Special Collector and all other special collectors shall observe and follow the orders, instructions, and directions of the Chief Special Collector in relation to any special collection function:

Provided that nothing in paragraph (b) shall be constructed so as to affect the proviso to subsection (6).

(c)For the purposes of the receipt of any declaration, amount or remittance, or the issue of any certificate or evidence, in accordance with section 2 or 3, references to the Chief Special Collector shall be construed as including a reference to any other special collector acting on behalf of the Chief Special Collector in that matter.

(d)If and so long as the Chief Special Collector is unable through illness, absence or other cause to fulfil his duties, another special collector designated in that behalf by the Revenue Commissioners shall act as Chief Special Collector, and any reference in this Act to the Chief Special Collector shall be construed as including, where appropriate, a reference to a special collector designated under this paragraph.

(4) A special collector shall be deemed to have contravened his declaration of confidentiality if he discloses, or causes to be disclosed, to a person who is not a special collector, any information which he could have acquired, or had access to, only by virtue of being a special collector:

Provided that a special collector shall not be deemed to have contravened his declaration of confidentiality where—

(a)having been requested to validate a certificate or evidence referred to in section 2 (4) or 3 (6) (c) by an officer of the Revenue Commissioners to whom that certificate or evidence has been produced for the purposes of section 5 or 6, as the case may be, he informs that officer whether or not that certificate or evidence, as the case may be, was given by a special collector,

(b)he provides to the Minister or the Revenue Commissioners such information, in the form of aggregates and in that form only, as the Minister or the Commissioners, as the case may be, may request in relation to—

(i)the total amount of—

and

(ii)the total respective numbers of individuals who remitted the amounts to the Chief Special Collector in respect of income, chargeable gains or value-added tax,

or

(c)he provides to the Controller and Auditor General or the Accounting Officer of the Revenue Commissioners such information as the Comptroller and Auditor General or that Accounting Officer, as the case may be, may request and reasonably require to ensure that any special collection function has been discharged in accordance with this Act.

(5) Any information acquired by the Comptroller and Auditor General or the Accounting Officer of the Revenue Commissioners by virtue of paragraph (c) of by the proviso to subsection (4) shall be used by the Comptroller and Auditor General or that Accounting Officer, as the case may be, only for the purpose of ensuring that any special collection function has been discharged in accordance with this Act:

Provided that the foregoing provisions of this subsection shall not prevent the Comptroller and Auditor General from carrying out his functions, including exercising his reporting duty to Dáil Éireann.

(6) The Revenue Commissioners may make such nominations as are required for the purposes of this section and may at any time also revoke any such nomination:

Provided that the Revenue Commissioners may only revoke at any time the nomination of the special collector who is the Chief Special Collector where they also designate, with effect from that time, a special collector to be his successor as Chief Special Collector.

SCHEDULE

Form of declaration of confidentiality to be made by special collectors

“I, A.B., do solemnly declare that I have read and understand section 7 of the Waiver of Certain Tax, Interest and Penalties Act, 1993, and that I will not disclose, or cause to be disclosed, to a person who is not a special collector (within the meaning of that section) any information which I acquire, or have access to, in the course of discharging special collection functions (within the meaning of the said section) save where the disclosure of such information is deemed, by virtue of the proviso to subsection (4) of the said section 7, not to be a contravention of this declaration.”.

Prohibition of disclosure of information.

35.—(1) A person shall not disclose information obtained by him or her under this Act or by being present at a sitting of a Committee or Commission held in private.

(2) Subsection (1) does not apply to—

(a)the disclosure of information in the public interest by a Minister of the Government,

(b)the disclosure of information contained in—

(i)a statement under section 13 or 14 (1) or a statement under section 29 (2) in relation to an interest specified in section 13,

(ii)a statement under section 17 or 18 or a statement under section 29 (2) in relation to an interest specified in section 17 or 18, or

(iii)a statement under section 19 or a statement under section 29 (2) in relation to an interest specified in section 19.

by a person to whom the statement is furnished under this Act (“the first-mentioned person”) to—

as the first mentioned person considers appropriate in a case where that person is of opinion that the information is such as to show that there may exist a conflict between an interest, specified in the statement, or an undisclosed interest, of the person by whom the statement is furnished as aforesaid and the public interest,

(c)the disclosure of information by a person—

(i)in the performance of his or her functions, or

(ii)in the public interest, to a Minister of the Government, the Secretary to the Government, a Committee, the Commission or a person standing determined for the time being under section 18 as a relevant authority, or

(iii)pursuant to an order of a court for the purpose of proceedings in that court,

or

(d)the disclosure, by or with the consent of the person to whom the information relates, of information contained in a report of a Committee under section 10 or the Commission under section 24 that has not been laid before either House.

(3) A person who contravenes subsection (1) shall be guilty of an offence.

Strategy statement

5.—(1) A statement referred to in this Act as a “strategy state-Strategy Statement. ment” shall—

(a)comprise the key objectives, outputs and related strategies (including use of resources) of the Department of State or Scheduled. Office concerned,

(b)be prepared in a form and manner in accordance with any directions issued from time to time by the Government, and

(c)be submitted to and approved by the relevant Minister of the Government with or without amendment.

(2) The Minister of the Government shall, not later than 60 days after the strategy statement has been approved, cause a copy thereof to be laid before each House of the Oireachtas.

(3) The Freedom of Information Act, 1997, shall not apply to a record containing—

(a)a strategy statement that has not been approved under sub-section (1) (c).

(b)a preliminary or other draft of the whole or part of the material contained in a strategy statement,

(c)the unamended version of a strategy statement that is approved under subsection (1) (c) with amendment, or

(d)a direction under section 7 in connection with the obligations of the Secretary General of a Department or Head of a Scheduled Office under section 4 (1) (b) or 5 (1).

during the period of 5 years immediately following the creation of the record.

Anonymity of authorised officers in relation to certain matters.

859.—(1) In this section—

“authorised officer” means an officer of the Revenue Commissioners nominated by them to be a member of the staff of the body;

“the body” has the meaning assigned to it by Section 58;

“proceedings” includes any hearing before the Appeal Commissioners (within the meaning of the Revenue Acts);

“the Revenue Acts” means—

(a)the Customs Acts,

(b)the statutes relating to the duties of excise and to the management of those duties,

(c)the Tax Acts,

(d)the Capital Gains Tax Acts,

(e)the Value-Added Tax Act. 1972, and the enactments amending or extending that Act,

(f)the Capital Acquisitions Tax Act, 1976, and the enactments amending or extending that Act.

(g)the statutes relating to stamp duty and the management of that duty.

(h)Chapter IV of Part II of the Finance Act, 1992, and

(i)Part VI of the Finance Act, 1983,

and any instruments made thereunder or under any other enactment and relating to tax;

“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.

(2) Notwithstanding any requirement made by or under any enactment or any other requirement in administrative and operational procedures, including internal procedures, all reasonable care shall be taken to ensure that the identity of an authorised officer shall not be revealed.

(3) In particular and without prejudice to the generality of sub-section (2):

(a)where, for the purposes of exercising or performing his or her powers or duties under the Revenue Acts in pursuance of the functions of the body, an authorised officer may apart from this section be required to produce or show any written authority or warrant of appointment under those Acts or otherwise to identify himself or herself, the authorised officer shall—

(i)not be required to produce or show any such authority or warrant of appointment or to so identify himself or herself, for the purposes of exercising or performing his or her powers or duties under those Acts, and

(ii)be accompanied by a member of the Garda Síochána who shall, on request by a person affected, identify himself or herself as a member of the Garda Síochána and shall state that he or she is accompanied by an authorised officer:

(b)where, in pursuance of the functions of the body, an authorised officer exercises or performs in writing any of his or her powers or duties under the Revenue Acts or any provision of any other enactment, whenever passed, which relates to Revenue, such exercise or performance of his or her powers or duties shall be done in the name of the body and not in the name of the individual authorised officer involved, notwithstanding any provision to the contrary in any of those enactments;

(c)in any proceedings arising out of the exercise or performance, in pursuance of the functions of the body, of powers or duties by an authorised officer, any documents relating to such proceedings shall not reveal the identity of any authorised officer, notwithstanding any requirements to the contrary in any provision, and in any proceedings the identity of such officer other than as an authorised officer shall not be revealed other than to the judge or the Appeal Commissioner, as the case may be, hearing the case;

(d)where, in pursuance of the functions of the body, an authorised officer is required, in any proceedings, to give evidence and the judge or the Appeal Commissioner, as the case may be, is satisfied that there are reasonable grounds in the public interest to direct that evidence to be given by such authorised officer should be given in the hearing and not in the sight of any person, he or she may so direct.

PART 35

Double Taxation Relief

CHAPTER 1

Principal reliefs

826.—(1) Where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to affording relief from double taxation in respect of—

(a)income tax;

(b)corporation tax in respect of income and chargeable gains;

(c)any taxes of a similar character imposed by the laws of the State or by the laws of that territory;

and that it is expedient that those arrangements should have the force of law, then, subject to this section and sections 168 and 833 to 835, the arrangements shall, notwithstanding any enactment other than section 168, have the force of law.

(2) Schedule 24 shall apply where arrangements which have the force of law by virtue of this section provide that tax payable under the laws of the territory concerned shall be allowed as a credit against tax payable in the State.

(3) Any arrangements to which the force of law is given under this section may include provision for relief from tax for periods before the passing of this Act of before the making of the arrangements and provisions as to income or chargeable gains which is or are not subject to double taxation, and subsections (1) and (2) shall apply accordingly.

(4) For the purposes of subsection (1), arrangements made with the head of a foreign state shall be regarded as made with the government of that state.

(5) Any order made under this section may be revoked by a subsequent order, and any such revoking order may contain such transitional provisions as appear to the Government to be necessary or expedient.

(6) Where an order is proposed to be made under this section, a draft of the order shall be laid before Dáil Éireann and the order shall not be made until a resolution approving of the draft has been passed by Dáil Éireann.

(7) Where any arrangements have the force of law by virtue of this section, the obligation as to secrecy imposed by any enactment shall not prevent the Revenue Commissioners or any authorised officer of the Revenue Commissioners from disclosing to any authorised officer of the government with which the arrangements are made such information as is required to be disclosed under the arrangements.

(8) The necessary apportionments as respects corporation tax shall be made where arrangements having the force of law by virtue of this section apply to the unexpired portion of an accounting period current at a date specified by the arrangements, and any such apportionment shall be made in proportion to the number of months or fractions of months in the part of the relevant accounting period before that date and in the remaining part of the relevant accounting period respectively.

(9) The Revenue Commissioners may from time to time make regulations generally for carrying out the provisions of this section or any arrangements having the force of law under this section and may in particular, but without prejudice to the generality of the foregoing, by those regulations provide—

S.I. No. 521 of 2001.

DOUBLE TAXATION RELIEF (TAXES ON INCOME AND CAPITAL GAINS)(REPUBLIC OF INDIA) ORDER, 2001

Article 26

EXCHANGE OF INFORMATION

1. The competent authorities of the Contracting States shall exchange such information including documents, as is necessary for carrying out the provisions of this Convention or of the domestic laws of the Contracting State concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention in particular for the prevention of fraud or evasion of such taxes. The exchange of information is not restricted by Article 1. Any information so exchanged by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Convention. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.

2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:

(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;

(b) to supply information or documents which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;

(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.

Protection of privacy of certain meetings of committees.

16.—Utterances made or documents or records in any form prepared at or for meetings of a committee (within the meaning of the Act of 1997) that are held otherwise than in public and at which no evidence is given to the committee shall not be disclosed without the consent of the Chairman of the committee.

22.—The Freedom of Information Act, 1997, does not apply to a record relating to an examination or investigation carried out under this Act by the Comptroller or an auditor appointed under section 2 other than—

(a)such a record that was created before the commencement of the examination or investigation, or

(b)a record relating to the general administration of the Office of the Comptroller.

Prohibition of unauthorised disclosure of confidential information.

13.—(1) Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a commissioner or member of the staff of the Manager or a member of a committee or an investment manager or a custodian or a consultant or an adviser engaged by the Commission, unless he or she is duly authorised by the Commission to do so.

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable—

(a)on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both, or

(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding 2 years or to both.

(3) Nothing in subsection (1) shall prevent disclosure of information—

(a)to the Commission, the Manager or the Minister, or

(b)obtained in the course of the performance of functions under this Act to the Revenue Commissioners or the Garda Síochána where there are reasonable grounds to suspect malpractice, fraud, tax evasion or other irregularity,

or prevent appropriate use of such information by the person concerned in performance of functions under this Act or any other enactment.

(4) In this section “confidential information” includes—

(a)information that is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description, and

(b)proposals of a commercial nature or tenders submitted to the Commission by contractors, consultants or any other person.

Prohibition on unauthorised disclosure of confidential information.

23.—(1) Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as—

(a)a member of the Board or a member of the staff of, or an adviser or consultant to, OSI, or

(b)a director or a member of the staff of, or an adviser or consultant to, a subsidiary,

unless he or she is duly authorised by OSI or the subsidiary, as the case may be, or by a member of the staff of OSI or the subsidiary, as the case may be, duly authorised in that behalf, to do so.

(2) Particular information or information of a particular class or description shall be considered, for the purposes of subsection (1), to be confidential if it is stated to be confidential or the Board or an officer of OSI or, as the case may be, the board or an officer of a subsidiary has directed that it be treated as confidential.

(3) In this section, “confidential” means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description.

(4) A person who contravenes subsection (1) is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 (£1,575.13).

Prohibition on unauthorised disclosure of confidential information.

18.—(1) Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing (or as a result of having performed) duties under this Act as—

(a)a member of the Board,

(b)Chief Executive Officer,

(c)a member of the staff of the National Treasury Management Agency, or

(d)an adviser or consultant to the Agency, the National Treasury Management Agency or an employee of such person whilst performing duties relating to such advice or consultation, or obtained while in performance of a service contract,

unless he or she is duly authorised by the Agency to do so.

(2) A person who contravenes subsection (1) is guilty of an offence and is liable—

(a)on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or to both, or

(b)on conviction on indictment to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 2 years or to both.

(3) Nothing in subsection (1) shall prevent disclosure of information to the Board, the Chief Executive Officer or the Minister.

(4) In this section “confidential information” includes—

(a)information that is expressed by the Board or the Minister to be confidential either as regards particular information or as regards information of a particular class or description,

(b)commercial information in relation to contractors, consultants, providers of finance or any other person, and

(c)proposals of a commercial nature or tenders submitted to the Agency by contractors, consultants or any other person.

19 May, 2004

Mr Martin Groves

Principal Clerk

Houses of the Oireachtas

Leinster House

Kildare Street

Dublin 2.

Report under Section 32 (3) of the Freedom of Information Act

Dear Mr Groves

Section 32 (3) of the Freedom of Information Acts 1997 and 2003 requires Ministers to report periodically to the Joint Committee on Finance and the Public Service on legislation under their remit that contains provisions that authorise or require the non-disclosure of a record. The next such report of this Department is due by 21 May, 2004.

In fulfilment of Section 32 (3), please find attached the latest report from the Minister for Foreign Affairs. I would be grateful if you could bring it to the attention of the Chairman of the Joint Committee.

If you have any question in this regard, please do not hesitate to contact me at (01) 408 2277.

Yours sincerely

Karl Gardner

Freedom of Information Officer

19 May, 2004

Mr. Sean Fleming, T.D.,

Chairman to the Joint Committee

on Finance and the Public Service,

Leinster House

Dublin 2.

Report under Section 32 (3) of the
Freedom of Information Acts 1997 and 2003

Dear Chairman

In accordance with Section 32 (3) of the Freedom of Information Acts 1997 and 2003 (FOI Acts), I wish to inform the Joint Committee on Finance and the Public Service that neither the Department of Foreign Affairs nor the Ireland-United States Commission for Educational Exchange (“Fulbright Commission”), a body which comes under the aegis of my Department, has primary responsibility for any legislation or enactments containing provisions authorising or requiring the non-disclosure of records.

Since our last report to the Joint Committee in April 1999, two further bodies were brought under the ambit of the FOI Acts - the Agency for Personal Service Overseas (APSO) and the National Committee for Development Education (NCDE). However, in accordance with a recommendation made in the Report of the Ireland Aid Review Committee, which was accepted by the Government, the staff and functions of APSO and NCDE were subsequently transferred to the Development Cooperation Directorate of my Department and, accordingly, APSO and NCDE are no longer considered separate entities under the FOI Acts. Any FOI requests received in connection with the workings of these bodies will be dealt with by the Department of Foreign Affairs. However, I can confirm for the Joint Committee that while these bodies were separate entities under the FOI Acts, they did not have primary responsibility for any legislation or enactments containing provisions authorising or requiring the non-disclosure of records.

The Department of Foreign Affairs is, however, affected by such provisions contained in legislation, such as the Official Secrets Act, 1963 for which other Government Departments have primary responsibility. The Department is also affected, in relation to records more than thirty years old, by the provisions of the National Archives Act, 1986 for which, I understand, the National Archives has primary responsibility. In particular, Section 8(4) of the National Archives Act provides three grounds on which records may be certified as not being available for inspection by the public while section 10 (1) (b) provides that such records are not required to be made available to the public. I, in common with other Government Ministers, availed of these particular provisions in order to classify certain records as restricted.

In accordance with Section 32 (3) (b) of the FOI Acts, I believe that these particular provisions of the National Archives Act, 1986, should continue in force and that there is no need to include a reference to them in Column (3) of the Third Schedule. This view is based on the fact that the provisions authorise but do not require non-disclosure and therefore allow the Minister and the Department to exercise any discretion which may be necessary.

Yours sincerely

Brian Cowen, T.D.

Minister for Foreign Affairs

Report to the Committee on Finance and the Public Service under FOIA Section 32 (2)

Review of Non-Disclosure Clauses in Health Legislation

A report prepared under Section 32 (2)

of

The Freedom of Information Act, 1997

for submission to the

Joint Committee on Finance and the Public Service

Interaction of FOI Act Section 32 and Third Schedule with secrecy clauses in other legislation

December 2004

Summary Recommendations

1.There are 16 establishment orders which make explicit the normal duty of confidentiality required of employees.

The Department recommends retention of these provisions and use of the Third Schedule to permit access to records under FOI.

2.There are 2 measures protecting the confidentiality of medical records.

The Department recommends retention of these provisions and use of the Third Schedule to permit access to records under FOI.

3.There are 5 regulations which transpose EU Directives containing restrictions on the disclosure of information - other than those relating to food safety. On examination, the regulations seem to reflect the requirements of the original Directives.

No action is therefore required.

4.On January 1, 2006, EC 882/2004 comes into force and establishes a new food protection regime. This European Regulation marks a shift towards transparency. It will make the food inspection process more open and accountable while protecting necessary confidences.

In anticipation of this regulation, the Department recommends that action on the existing regulations is unnecessary.

5.The Civil Registration Act, 2004 contains 3 provisions inherited from the legislation it replaces. These protect the privacy of the stillbirth register, of personal information collected for statistical purposes and of the adoption register.

The Department recommends that in each case the provisions remain in force and that the records remain exempt from FOI access.

6.In the Acts regulating Medical, Dental, and Nursing professions there are 3 provisions restricting the disclosure of findings and decisions of the formal Fitness to Practise Committees. It is planned to amend this legislation, providing better structures and procedures to address issues of conduct and competence. Amendments to the Medical Practitioners Act have been approved and detailed drafting is in progress. The Health and Social Care Professionals Bill 2004 demonstrates the model now envisaged for such regulation.

The Department recommends that the current protections remain in place pending the introduction of new legislation.

1. Introduction

Section 32 (1) of the Freedom of Information Act, 1997, [FOI Act] provides for restrictions on disclosure arising from other legislation. If this other legislation provides for discretion in relation to the disclosure of information, then that discretion will apply. If the other legislation provides no discretion, then disclosure is prohibited. However, if the other legislation provides no discretion but the prohibition is listed within the Third Schedule of the FOI Act, disclosure is then permitted under the terms of the FOI legislation.

Within health legislation restrictions on disclosure refer mainly to third party interests - personal information, information received in confidence, and commercially sensitive information.

This report to the Oireachtas Committee on Finance and the Public Service is to comply with Section 32 (2) of the FOI Act which requires a 5-yearly review of all clauses in legislation which prohibit disclosure of information or permit its withholding. Section 32 (2) specifies that the review should consider such clauses and make recommendations on their amendment, repeal, or inclusion in the Third Schedule.

In 1999, the Department carried out its first review under this Section. The Oireachtas committee received observations on it from the Information Commissioner and subsequently met with Department staff. This review takes account of the issues raised.

Appendices A and B are organised to reflect the main categories of non-disclosure clauses identified within legislation under the aegis of the Minister for Health and Children.

-Appendix A lists the non-disclosure clauses in summary form, identifying those already included in or deemed appropriate for inclusion in the Third Schedule.

-Appendix B contains the full texts of the restrictions on disclosure.

2. Forthcoming Health Legislation

In 1999, the Commisioner described the Act as a general access regime which should, over time, lead to greater certainty … as to what information should properly be released and what should not. In that context he questioned the existence of separate secrecy provisions in legislation other than the FOI Act. However, it is felt that the range of health contexts in which sensitive information may be retained is such as to warrant a limited number of specific protections within health legislation.

Legislation is due in 2005 to improve the governance of health information in the context of the establishment of the Health Information and Quality Authority. This will give authority for the collection and use of information. It will require the disclosure or reporting of information in certain circumstances, while in others it will strengthen confidentiality. Such a framework of law and policy will inform professional and public alike. In an FOI context, it will assist in achieving that certainty as to what information should properly be disclosed and what should not.

Two Bills currently before the Oireachtas include non-disclosure provisions:

-The Health Bill, 2004, prohibits unauthorised disclosure of confidential information. This clause is to be included in the Third Schedule, thus permitting access under the terms of the FOI Act.

-The Health Bill, 2004, also provides that draft or unapproved Corporate Plans, prepared under Section 29, would be excluded from FOI access for 5 years. Strategic Statements prepared under the Public Service Management Act, 1997, have identical protection.

-The Health and Social Care Professionals Bill, 2004, regarding the process of mediation, prohibits the disclosure of any answer or statement made, in the course of attempting to resolve a complaint … by the complainant or the registrant. Consideration is being given to the inclusion of this clause in the Third Schedule.

3. Observations of the Information Commissioner in 1999.

In the Information Commissioner’s previous report to the Committee, he cited the existence of some clauses which prohibit unauthorised disclosure of information by staff of public bodies and recommended that these be included within the Third Schedule. This review follows this approach.

The Commissioner also drew attention to the general possibility that the transposition of EU directives could include non-disclosure provisions which exceed those required by the Directives in question. Within health legislation the Statutory Instruments of particular concern to the Commissioner relate to food inspection. These will be replaced by a new European Regulation - EC 882/2004 which comes into force on January 1, 2006. As an EU Regulation it does not require transposition. It marks a significant improvement in openness and accountability. The Department recommends that the current legal position should remain unchanged in 2005.

The Information Commissioner recommended that the existing restriction on disclosure of the records of Fitness to Practise Inquiries be included in the Third Schedule to permit FOI access. However, legislation is planned for 2005 which will bring increased transparency to this function. The proposals to amend the Medical Practitioners Act, 1978, have been approved by Cabinet and the Parliamentary Counsel is drafting the detailed provisions. Similar proposals have already been published for the regulation of Health and Social Care Professions. In addition, the regulatory bodies for all these professions will be included as public bodies listed in the First Schedule - coming directly under the Freedom of Information Act. In this context, the Department would recommend that the protections remain unchanged in anticipation of the planned changes in legislation.

The following sections review the individual non-disclosure clauses in health legislation as listed in Appendices A and B.

4. Establishment Orders & Equivalent

The establishment orders and Acts listed under this heading each contain a clause to make explicit the normal duty of confidentiality required of employees similar to that imposed on Civil Servants by Section 4 of the Official Secrets Act, 1963. As such it is recommended that these clauses remain in force within legislation but that they be included in the Third Schedule. There are 19 such clauses of which 3 are already included in the schedule.

5. Confidentiality of Medical/Health Records

A number of enactments provide specific protection regarding personal information, including that of the deceased. In addition to the instruments already considered, two measures have clauses relating to privacy. These should stay in force for that purpose but are appropriate for inclusion in the Third Schedule to permit access under the Act.

The confidentiality of clinical records is an essential characteristic of the fiduciary relationship between patient and professional. Data protection legislation now provides statutory protection for such records, but aspects of their governance are still appropriate to health legislation.

Health Service Regulations, 1971 S.I. 105/71

This regulation requires Health Boards to keep and treat medical/clinical records in a confidential manner and not disclose personal information from them without the consent of the patient. The regulation, S.I.105/71 is already included in the Third Schedule, permitting the release of information under the FOI Acts.

The above regulation should remain in force until replaced by the legislative framework envisaged in the National Health Information Strategy.

S.I. No. 226/1993: Nursing Homes (Care and Welfare) Regulations, 1993

Patient records held by nursing homes do not differ in character from other medical/clinical records. The non-disclosure provision should remain in the regulation but should be included in the Third Schedule

6. EU Directives

Ireland is required to reflect EU law via the transposition of EU Directives into domestic legislation. In the 1999 Report, the Information Commissioner discussed the transposition of non-disclosure clauses within EU directives and the danger that the transposed text could be more restrictive than the original Directive required. Where this proves to be the case, he recommended inclusion in the Third Schedule.

EU Directives other than those relating to Food Safety

The following Statutory Instruments implement EU Directives containing non-disclosure clauses.

-E.C. (In Vitro Diagnostic Medical Devices) Regulations 2001.

-E.C. (Medical Devices) (Amendment) Regulations 2001.

-E.C. (Active Implantable Medical Devices) Regulations 1994.

-E.C. (Recognition of Medical Qualifications) Regulations 1976.

-E.C. (Amendment of Cruelty to Animals Act 1876) Regulations 2002.

-E.C. (Recognition of General Nursing Qualifications) Regulations 1980.

-E.C. (Recognition of Midwifery Nursing Qualifications) Regulations 1983.

On examination, the concern expressed by the Commissioner does not appear to apply to these specific Statutory Instruments as their wording matches sufficiently that used in the European Directives. The clauses state that it shall be an offence to disclose or use for business or commercial purposes information obtained by an individual in the course of his/her duties. Inclusion in the Third Schedule is therefore not felt to be warranted.

However, if the Oireachtas Committee have any concerns in relation to the above, the Department would be happy to consult with the Attorney General with regard to the appropriateness of their inclusion in the Third Schedule.

EU Food Directives.

The Commissioner’s specific concerns in 1999 related to Article 3 of S.I. 333 of 1991 and Article 20 of S.I. 85 of 1998 which state that a person who has gained access to information by virtue of inspections made in the enforcement of Regulations made under this section shall not disclose such information unless it is necessary to do so for the purpose of the enforcement of these Regulations. The Commissioner expressed the view that, on the face of it, the provisions in the Statutory Instruments appear to go beyond the requirements of the relevant EU Directives (89/387/EEC and 93/99/EEC on Official Control of Foodstuffs) and he considered that the provisions of the Statutory Instruments should be included in the Third Schedule.

There have been a number of developments in this regard.

-While the Department considered redrafting the relevant provisions in 2000, the Attorney General advised that the problem lay in the interpretation of the phrase “professional secrecy” used in the EU Directive.

-Since then, the Information Commissioner discussed these Statutory Instruments in some detail in the context of an appeal under the Act, case reference 00282, as published on the Information Commissioner website www.oic.gov.ie/25868 3c2. Arising from this decision, the Commissioner’s view is that the extent of non disclosure required by these Statutory Instruments is greatly restricted. The restriction applies only to records containing facts and raw data (and any analysis deriving from those facts and raw data) which were extracted in the course of an examination or inspection and not to correspondence about decisions taken.

-EU Regulation [EC 882/2004], establishes a new regulatory framework to ensure food safety. Article 7 of this EU Regulation requires that there be a high level of transparency in its operation. The Regulation comes into force on January 1, 2006 and the Department of Health and Children is currently considering how best to give effect to the parts of Regulation under its remit. Discussions are ongoing with other governmental departments and with food safety agencies to ensure the Regulation is implemented in a co-ordinated and uniform manner.

While the issue raised by the Information Commissioner is still relevant to S.I. 333 of 1991 and S.I. 85 of 1998, these instruments will be repealed during 2005. The focus of attention must now be on the successful implementation of a new and improved EU Regulation and it is important to achieve full co-operation in implementing new practice. In this context, the Department does not favour the inclusion of the above Statutory Instruments in the Third Schedule.

7. Civil Registration and Vital Statistics

The Civil Registration Act, 2004 (CRA, 2004), which is enacted but not yet fully commenced, provides for the reorganisation and modernisation of the Civil Registration Service. This comprises the registration of births, stillbirths, adoptions, marriages and deaths (including certain births and deaths occurring outside the State) and introduces provisions for the registration of Divorces and Civil Nullities. The Act repeals and restates the following non-disclosure provisions.

-Section 2 (5) of the Vital Statistics Act 1952 restated in Section 73(4) of CRA’04.

-Sections 8 (3), (4) of the Stillbirths Registration Act 1994 restated in Section 62(1) of CRA’04

-Section 22 (5) of The Adoption Act 1952 restated in Section 35 (1) of CRA’04.

Vital Statistics & Births, Deaths & Marriages Registration Act, 1952

The Vital Statistics & Births, Deaths & Marriages Registration Act, 1952 prohibits the disclosure of personal information obtained in the course of collecting vital statistics. This is mitigated by the Births, Deaths & Marriages Registration Act, 1972 which allows such disclosure to bona fide researchers and to medical officers of Health Boards. The Civil Registration Act, 2004 contains both provisions.

The Central Statistics Office (CSO) does not favour a change in the current disclosure provisions and there is concern that the rules for disclosing related statistics should be consistent. On this basis, unless there is a change in the arrangements for the disclosure of statistics collected by the CSO, it is recommended that there be no change in the arrangements for the Vital Statistics Acts.

Stillbirths Registration Act, 1994

In providing for the registration of stillbirths, this Act respects the privacy of the parents and restricts access to the register. Apart from the parents, certificates are at the discretion of an tArd-Chláraitheoir. The Civil Registration Act, 2004, contains the same provisions.

On consideration, it is the Department’s view that stillbirths are a matter of exceptional sensitivity. There is disclosure to those immediately affected. The provision for discretion reflects the requirements of FOIA Section 32 (1) (b) and inclusion in the Third Schedule, under Section 32 (1) (a), is not warranted.

Adoption Act, 1952.

Legal adoption has been a private and confidential service. There is no provision under present legislation for an adopted person to have access to his/her original birth certificate or to their adoption file. A number of High Court and Supreme Court judgements have underscored the difficulty faced by the Adoption Board in providing adopted persons with information about their birth parents.

Section 22 (5) of the Act prohibits access to the register linking an entry in the adoption register with the corresponding entry in the register of births. The Civil Registration Act, 2004 contains the same provisions.

In 2003, the Minister for Children conducted a wide ranging consultation on adoption legislation including adoption information. The Minister hopes to bring proposals on a range of adoption issues to Government in the very near future based on the outcome of the consultation. In addition to the legislative proposals, the Adoption Board is working with individuals affected by, or working in adoption to develop new procedures on adoption information. In the circumstances, the Department recommends that, in advance of these developments, there be no change in the current statutory provisions relating to adoption information.

8. Fitness to Practise Inquiries

The Medical Council, Dental Council and An Bord Altranais are professional regulatory bodies. Where there is a concern that an individual may be guilty of professional misconduct or be unfit to practise because of a physical or mental disability, current legislation provides for a formal inquiry. Where the inquiry does not find against the professional, the law prohibits public disclosure of the findings without the individual’s consent.

Fitness to Practise is central to the purpose of regulation - the protection of public and professional alike. That this function can be exercised effectively requires the confidence of the professional and of society. The good name of a registered professional is protected until the inquiry has reached a decision that the person has been guilty of misconduct or is unfit to practise. Where there is a finding against the professional, disclosure is then possible.

In 1999 the Commissioner’s view was that the Act provides sufficient protection for records in the hands of public bodies and that the Fitness to Practise clauses should be included in the Third Schedule. However, the Commissioner has also acknowledged that where such inquiries are central to the functioning of a body, their categoric exemption in Section 46 may be in order. The Department’s view is that these concerns will be addressed in the context of new legislation which will replace the existing Fitness to Practise provisions and that prior inclusion in the Third Schedule is not required.

The Health and Social Care Professionals Bill, 2004, provides for a new Health and Social Council to regulate 12 professions including psychologists, physiotherapists and social workers. This Bill proposes a new framework within which to address the conduct or competence of a professional. Unlike previous legislation, it provides for preliminary proceedings, medication and a separate committee for health issues. There is an emphasis on structure, publication, disclosure and clear informing. In general, the Professional Conduct Committee is to hold its meetings in public and the Health Committee is to hold its meetings in private. The only restriction on disclosure as proposed relates to the protection of parties who agree to enter mediation.

Amendments to the Medical Practitioners Act, 1978, now being drafted, will provide for similar structures and procedures. These will lead to more open and transparent governance of professional conduct and competence. The Department is preparing similar amendments to the Nursing Act, 1985. Both measures are intended for inclusion in the 2005 legislative programme.

It is anticipated that the Medical, Dental and Nursing Boards will be included in the First Schedule within 2005 and come directly under the FOI Act as public bodies in their own right as will the Health and Social Care Professionals Council on its establishment.

In the circumstances it is recommended that disclosure of information in relation to Fitness to Practice can best be dealt with in the context of the new legislation. It is therefore not proposed to include any of the existing provisions in the Third Schedule at this stage. It is anticipated that the new legislation will provide an improved framework for the governance on confidentiality and disclosure associated with these functions.

14 December 2004

Appendix A

Appropriate to Third Schedule

Not Appropriate to Third Schedule

Appendix B

Dear Mr Groves

I refer to section 32(3) of the Freedom of Information Act, 1997 (as amended) which requires the Minister to prepare and forward to the Joint Oireachtas Committee on Finance and the Public Service, information in relation to this Department’s legislative provisions which come within the terms of section 32(2) of the Freedom of Information Act, 1997 (as amended).

The Sections/Regulations of the Data Protection Act, 1998 which were listed by the Department in their report to you in 1999 as containing secrecy provisions, are not now considered by the Department to contain secrecy provisions. On 5 July, 2000, the Department appeared before the Joint Oireachtas Committee on Finance and the Public Service to discuss the Department’s report. At that presentation the Department agreed with Mr Whelan of the Office of the Information Commissioner, that the provisions as outlined below in relation to the Data Protection Act, 1988 do not restrict right of access granted by the Freedom of Information Act, 1997 and therefore, should not be included in the Third Schedule to the Freedom of Information Act.

1.Section 5 of the Data Protection Act, 1988

2.Data Protection Act, 1988 (Restriction of Section 4) Regulations 1989 (S.I. No. 81 of 1989).

3.Data Protection (Access Modifications) (Health) Regulations, 1989 (S.I. No. 82 of 1989)

4.Data Protection (Access Modification) (Social Work) Regulations 1989 (S.I. No. 83 of 1989).

5.Data Protection Act, 1988 (Section 5(1)(d) (Specification) Regulations 1989 (S.I. No. 84 of 1989).

6.Data Protection Act, 1988 (Section 5(1) (d) (Specification) Regulations 1993 (S.I. No. 95 of 1993).

I now enclose a copy of the Department’s enactments as required under section 32(3) of the Act.

Yours sincerely

Noel Waters

Assistant Secretary

29 October, 2004

Joint Committee on Finance and the Public Service

Review under Section 32 (2) of the FOI Act, 1997 and 2003 of the List of Official Secrets Acts and all other statutory provisions which restrict access to information falling under the remit of the Department of Justice, Equality and Law Reform.

1.Section 10 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993.

The purpose of this provision is to preserve as far as possible the confidentiality of the interception system by, inter alia, restricting to some extent the giving of evidence in civil proceedings that would reveal the existence of an authorised interception.

The Minister is of the view that no change should be made to the above.

2.Section 12 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993.

This provision imposes a statutory duty on the Minister for Justice, Equality & Law Reform to ensure that proper arrangements are in force to confine disclosure of the existence of authorisations for interceptions and the contents of intercepted material and to limit the making of copies of that material to the absolute minimum necessary for the purposes of the investigation of serious crime or in the interest of the security of the State.

The Minister is of the view that no change should be made to the above.

3.Official Secrets Act, 1963, section 4 (Disclosure of official information), section 5, (Disclosure of confidential information in official contracts) and section 9 (Acts contrary to the safety of preservation of the State)

The provisions of the Act, which prohibits a civil servant from communicating official information unless he/she is authorised to do so in the course of his/her official duty are of general application in the Department. All persons recruited or taking appointment in this Department are provided with a copy of Department of Finance circular 15/79 and having read it they are required to acknowledge that its contents have been noted.

An amended Official Secrets Act is on the Government’s legislative programme.

A preliminary draft of Heads of a Bill is under examination in the Department and the issue of de-criminalising unauthorised disclosures is under examination in that context. The Minister is of the view that any proposal to de-criminalise unauthorised disclosures must be balanced while retaining clear protection for political and administrative confidential information.

The Minister is of the view that no change should be made to the above.

4.Registration of Title Act, 1964 (section 107) and Land Registration Rules 1972

Pursuant to Section 107 of the Registration of Title Act 1964 and Rule 198 of the Land Registration Rules 1972 (S.I. no. 230 of 1972) any entry in or index to a register (i.e. folio) and any registry map may be inspected by any person. There is a prescribed fee for this service (S.I. 343 of 1999 as amended).

The original title documents (or in certain circumstances, copies) on which the register is based are retained in the Land Registry on files called “Instruments”. These documents can only be inspected by the persons authorised under Rule 188 of the above Rules. The effect of Section 107 and Rules 188 and 198 is that while any person can establish who the registered owner of property is and the burdens that affect the property (e.g. charges), there is a restricted access to the documents on which the register is based. This provides a balance between the protection of the right of privacy of individuals in their property transactions on the one hand and on the other hand the protection of potential purchasers and mortgagees for fraud and/or complex conveyancing transactions by providing a public, State guaranteed, register of the ownership of property. A prospective purchaser for value or mortgagee can rely on the title shown on the folio and does not have to look behind the folio to verify the title being acquired by him/her.

The Ground Rents Section operates Rule 188 of the Land Registration Rules 1972 in relation to inspection of applications for Vesting Certificates.

The Minister is of the view that the following should be added in relation to Rule 188 of the Land Registration Rules 1972.

Rule 188 of the Land Registration Rules 1972

Rule 188 falls within the mandatory exemption under Section 32(1) (a) of the Freedom of Information Act 1997 as Rule 188(1) states that “the registered owner of the property and any person authorised by such owner, or by order of the court or by these rules, but no other person may inspect a document filed in the Land Registry on a dealing or transaction with the property of the owner. Rule 188(2), (3), (4), (5), (6) and (8) provides for inspection of title documents by other parties with an interest in the property.

The FOI Acts define personal information as including “information relating to the property of the individual (including the nature of the individual’s title to any property)”. Rule 188(1) already recognises and protects this right of privacy for the registered owner but this is not an absolute right and may be set aside in accordance with the other provisions of the Land Registration Rules 1972 or by the Courts. Under Rule 188(8) the Registrar may in special circumstances and on such terms as she shall think fit permit a person to inspect a document filed in the Registry. In exercising this power the Registrar is subject to a right of appeal to the court under Section 19 of the Registration of Title Act 1964.

Should Rule 188 be amended or repealed?

It is submitted that the Rule should not be repealed as the inspection and issuing of official copies of records held in the custody of the Land Registry must be regulated. In the absence of Rule 188 all requests for copies of documents filed in the Registry would have to be handled under the FOI Act. It is considered that repealing Rule 188 would be unjustifiable on three counts:

• The FOI Acts state that information relating to the property of the individual (including the nature of the individual’s title to any property) constitutes personal information.

• There is provision in Rule 188 for persons other than the registered owner to inspect documents in certain circumstances.

• The Land Registry must be able to provide a responsive service that meets the needs of the wider commercial community. If Rule 188 were repealed the process of issuing copies would be slower because of the additional procedures which must be observed under the FOI Act. Serious conveyancing problems could result because of the delays that could arise in dealing with applications through the statutory processes rather than under Rule 188. (There are currently approximately 4.5 million Instruments filed - estimated to increase by approximately 200,000 in 2004. Applications for certified copy Instruments in 2003 alone totalled 8629).

Should Rule 188 be added to Column 3 of the Third Schedule?

It is submitted that Rule 188 should not be added to Column 3 of the Third Schedule for the following reasons:

• The Third Schedule contains a list of general or “catch-all” secrecy provisions. As set out above rule 188 is not a “catch-all” secrecy provision. It allows for unfettered inspection and copy by the registered owner of all of the records filed in the Registry in relation to his property and also allows the inspection and copy of some records by other persons in certain circumstances.

• The application of the FOI Acts to requests for inspection of Land Registry Instruments might in some cases be more restrictive than the operation of Rule 188 and could prevent the current registered owner having access to all prior filed records where a third party could make a sustainable objection to release of information under Section 26, 27 or 28.

• If Rule 188 were added to the 3rd Schedule applicants would have the option of applying either under the FOI Acts or under Rule 188. As stated above, if the applications have to be handled under FOI this would put a huge administrative burden on the Registry and result in a loss of revenue.

• Most applications under Rule 188 are successful. See Appendix.

The Minister is of the view that no change should be made to the above.

5.Censorship of Publications Act, 1929 and Censorship of Publications Act, 1946

and

6.Censorship of Films Act, 1923, Censorship of Films Act, 1925, Censorship of Films Act, 1930, Censorship of Films Act, 1970 and Censorship of Films Act, 1992

and

7.Video Recordings Act, 1989

All of the above Censorship Acts regarding books, films and videos, while not specifically restricting access to data, operate a censorship system to restrict access to certain types of material.

The Minister is of the view that no change should be made to the above.

8.Section 61(5) of the Employment Equality Act, 1998

This section provides that any information obtained by the Equality Authority in the course of an inquiry concerning any organisation or person, which is not otherwise available, shall not be included in any report produced by the Authority without the consent of the organisation or person concerned, unless its non-disclosure would be inconsistent with the duties of the Authority or the object of the report. This provision is similar to section 43(5) of the Employment Equality Act, 1977 - which is included in the Third Schedule to the Freedom of Information Act, 1997.

The Minister is of the view that Section 61(5) of the Employment Equality Act, 1998 should be included in the Third Schedule to the Act.

9.Section 97(2) of the Employment Equality Act, 1998

This section provides that any information furnished to, or acquired by, the Director of Equality Investigations, the Labour Court, or any person acting on their behalf, in the course of an investigation, or by virtue of sections 94 to 96 of the Act, shall not be disclosed or published except

-for the purposes of an investigation or hearing;

-on the order of the High Court or Circuit Court;

-with the consent of the person furnishing the information and any person to whom it might relate;

-in a decision of the Director of Equality Investigations or a determination of the Labour Court to which its disclosure is relevant;

-for the purposes of an application to the Circuit Court under section 96 of the Act.

The Minister is of the view that as the Equality Tribunal is not a body for the purposes of the Freedom of Information Act, 1997 (as amended) no change should be made to the above.

10.Section 19 of the Refugee Act, 1996

This Section provides that the Refugee Applications Commissioner, the Refugee Appeals Tribunal, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants for asylum is kept confidential and provides for penalties for breaches of the Act.

The Department operates within the spirit of the Act and therefore, information about the identity of an asylum applicant or his/her nationality is not disclosed to the general public.

The Minister is of the view that no change should be made to the above.

11.Sections 10 & 11 Criminal Assets Bureau Act, 1996

Section 10 of the Criminal Assets Bureau Act, 1996 provides that all reasonable care must be taken to ensure that the identity of a bureau officer, who is an officer of the Revenue Commissioners or an officer of the Minister for Social, Community and Family Affairs or any member of the staff of the Bureau, will not be revealed.

Section 11 makes it an offence to publish or cause to be published the fact that an individual, being or having been an officer of the Revenue Commissioners or an officer of the Minister for Social, Community and Family Affairs, is or was a bureau officer or is or was a member of staff or the Bureau. Sections 132 and 15 relate to intimidation and assault of bureau officers and members of staff of the Bureau respectively.

This Department and the Chief Bureau Officer believe that the Criminal Assets Bureau Act, 1996 should not be included under the Third Schedule of the Freedom of Information Acts, 1997 and 2003. The Bureau is a high security area and the staff who work there must be afforded protection against the risks to their personal safety.

Besides increasing the risks to the personal safety of the non-Garda Bureau Officers, members of staff of the Bureau and their families, by lifting the anonymity and other provisions of the 1996 Act. It is felt that this would also make it difficult to recruit and retain staff for the Bureau.

The Minister is of the view that no change should be made to the above.

12.Section 9 of the Criminal Justice (Location of Victims Remains) Act, 1999

On 27 April 1999, the Governments of Ireland and of the United Kingdom signed an agreement to establish an independent commission for the location of victims’ remains. The Act provided a framework to facilitate the location of the remains of victims of paramilitary violence in Northern Ireland who were killed prior to 10 April 1998.

A central provision of the Act is the obligation on the commission to maintain confidentiality in relation to the information disclosed to it. Confidentiality is essential if those who have information about secret burial places are to be encouraged to come forward and release same to the Commission. This, in turn, also applies to communications between the Commission and bodies that are subject to the FOI Act. The amendments to Section 24 of the Freedom of Information Act, 1997 are contained in Section 9 of this Act.

The Minister is of the view that no change should be made to this provision.

The Minister is of the view that the following should be added to the list of Statutory provisions which restrict access to information falling under the remit of the Department of Justice, Equality & Law Reform.

1.Section 36(2) of the Equal Status Act, 2000

Section 36(2) of the Equal Status Act, 2000 provides that no information furnished to or otherwise acquired by the Authority (Equality Authority), the Director (Director of the Equality Tribunal) or any other person by virtue of sections 33 to 35, or otherwise in the course or for the purposes of any investigation, mediation, hearing or inquiry aforesaid, shall be published or otherwise disclosed except

-for the purposes of such an investigation, mediation, hearing or inquiry;

-on the order of the High Court or the Circuit Court,

-with the consent of the person furnishing the information and of any other person to whom the information may relate;

-in a decision of the Director published or made available under section 30 and to which the disclosure of the information is relevant;

-for the purposes of an application to the Circuit Court under section 35 of the Act.

The Minister is of the view that no change should be made to this provision.

2.Paragraph 10 of the Second Schedule to the Data Protection Act, 1988, as inserted by section 20 of the Data Protection (Amendment) Act, 2003

This provision places a duty of confidentiality on the Data Protection Commissioner, and on staff of the Office of the Commissioner, with regard to confidential information obtained in the course of their duties. It takes account of Article 28.7 of the Data Protection Directive (Directive 95/46/EC) which requires Member States to provide that members and staff of the data protection supervisory authority, even after their employment has ended, are to be subject to a duty of professional secrecy with regard to confidential information to which they have access.

The Minister is of the view that no change should be made to this provision.

3.Section 18 and Schedule 2 of the Private Security Services Act, 2004

Section 18 of the Private Security Services Act, 2004 prohibits the Chief Executive of the Private Security Authority, members of the Authority, members of the staff of the Authority and others from disclosing information obtained in the course of their duties, without the consent of the Authority. Disclosure may take place where otherwise provided by law. The prohibition does not apply to the disclosure of information in a report made to the Authority or by the Authority to the Minister.

Paragraph 9 of Part 1 of Schedule 2 to the Private Security Services Act, 2004 prohibits members of the Private Security Appeal Board or the Secretary of the Appeal Board from disclosing information obtained in the course of their duties, without the consent of the Appeal Board. Disclosure may take place where otherwise provided by law.

The Minister is of the view that no change should be made to these provisions. It has not yet been decided whether the Private Security Authority should be subject to the Freedom of Information Act, 1997 (as amended). A decision on whether these provisions should be added to the Third Schedule to the Act can be taken at that time.

4.Sections 32 and 44 of the Children’s Act, 2001

There are two confidentiality provisions in the Children Act 2001. Both are in Part 4, the Diversion Programme, at sections 32 and 44.

Section 32. One of the aims of the Diversion Programme is to give children who have committed offences and are suited to admission to the Programme an opportunity not to obtain a criminal record. Admission to the Programme implies a caution (which may be a restorative caution), supervision and possibly a family conference (restorative justice). Many “outsiders”, such as community workers, social workers, clergy etc may potentially attend the conference and, given the importance of the fresh start for the child involved and the need for trust and confidence in the proceedings, it is crucial that those attending the conference do not disclose confidential information heard at the conference eg., sensitive family information or evidence of previous offending. Thus, under section 32, it is an offence for a person to disclose confidential information obtained while participating as a member of a conference.

Section 44 provides for a committee to moniter the effectiveness of the Diversion Programme, which includes family conferencing. Again, sensitive information relating to individual children and their families will be available to the committee. Subsection (10) states that “Subject to the Freedom of Information Act, 1997 a person shall not disclose confidential information obtained by him or her while serving… as a member of the committee.”

The Minister is of the view that no change should be made to these provisions.

5.Section 9 of the Independent Monitoring Commission Act, 2003

On 1 May 2003, the Governments of Ireland and of the United Kingdom made a joint Declaration which was a comprehensive assessment of what remained to be implemented from the Good Friday Agreement. Alongside this Declaration, an agreement on monitoring and compliance was published, which set out important principles on how confidence and stability in the political process could be sustained and developed in Northern Ireland. This would happen principally through the establishment of an independent commission to monitor and report on the implementation of commitments regarding the end of paramilitary activity and the programme of security normalisation in Northern Ireland.

The purpose of this Act is to provide in Irish Law for the establishment of this Independent Monitoring Commission. Section 9 of the Act provides that applications under the Freedom of Information Act for disclosure of information relating to the functioning of the Commission may be refused, in order that it can exercise its powers and carry out its duties in a confidential manner, and, in particular, that communications between the Commission and bodies subject to the FOI Act are not disclosable.

The Minister is of the view that no change should be made to this provision.

REPORT 2004

APPENDIX

Applications received under Rule 188 for 2003

In 2003 the Land Registry received 8,629 requests for certified copy Instruments and completed 8,067. The balance are on hand awaiting processing.

In 16 cases although copies of the Instruments did not issue the Registrar was able to provide information from the Instruments which appeared to satisfy the requirements of the applicants. (The type of information which would be released in these cases includes the date and nature of a deed and the parties and/or signatories to a deed. In certain cases where an applicant has detailed knowledge of the contents of a deed e.g. the consideration, the Registrar would confirm that the information is correct.) In the 16 cases referred to, all of the applicants were informed of their right to appeal under Section 19(1) of the Registration of Title Act, 1964 and advised of the facility of applying for a formal ruling under Rule 212(2) of the Land Registration Rules 1972.

Office of the Minister for Social and Family Affairs

Oifig an Aire Gnóthaí Sóisialacha agus Teaghlaigh

Dear Sean,

In accordance with Section 32(6) of the Freedom of Information Act, 1997 (as amended), I wish to furnish a report on the position in respect of my Department and of the public bodies under it’s aegis in relation to provisions in any enactments that authorise or require the non-disclosure of a record.

In relation to my Department and the following public bodies which are under the aegis of my Department:

-Social Welfare Appeals Office;

-Combat Poverty Agency;

-Social Welfare Tribunal;

-Pensions Board,

there are no provisions in any enactment which confer functions on me or on any of these public bodies in relation to which functions are vested in me, that authorise or require the non-disclosure of a record other than those already specified in column (3) of the Third Schedule to the Freedom of Information Act. Accordingly the question of whether they should be amended, repealed or allowed to continue in force does not arise.

The position in respect of the Department and of the public bodies referred to above is set out in Appendix A attached.

In relation to the Office of the Pensions Ombudsman and Comhairle, there are legislative provisions relating to the non-disclosure of records. The position in relation to these is set out in Appendix B attached.

In accordance with Section 32(4) of the Freedom of Information Act, a copy of this report is being furnished to the Information Commissioner and a copy will be laid before each House of the Oireachtas.

Mary Coughlan, TD

Minister for Social & Family Affairs

Appendix A

1.Department of Social & Family Affairs

There are no provisions in the Social Welfare Acts or Statutory Instruments which restrict access to information held within the Department.

2.Social Welfare Appeals Office

There are no provisions in legislation relating to this Body that authorise or require the non-disclosure of a record held by it.

3.Combat Poverty Agency

Description of provision

Section 20 of the Combat Poverty Agency Act, 1986 prohibits disclosure of information obtained by this body’s employees, members etc. in the course of performing their duties without the Agency’s consent. Contravention of this is an offence, with a maximum fine of £800.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

This provision is specified in column (3) of the Third Schedule to the FOI Act and, accordingly, the question of whether it should be amended, repealed or allowed to continue in force does not arise.

4.Pensions Board

Description of provision

Section 24 of the Pensions Act, 1990 prohibits disclosure of information obtained by a member or employee of, or an adviser or consultant to the Board obtained while performing their duties. Contravention of this provision is an offence carrying a maximum fine of £1,000 on conviction. Nothing in this section prevents disclosure of material contained in a report to or by the Board to the Minister.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

This provision is specified in column (3) of the Third Schedule to the FOI Act and, accordingly, the question of whether it should be amended, repealed or allowed to continue in force does not arise.

5.Social Welfare Tribunal

There are no provisions in legislation relating to this Body that authorise or require the non-disclosure of a record held by it.

Appendix B

Non-disclosure provisions relating to public bodies under the aegis of the Department of Social and Family Affairs

1.Office of the Pensions Ombudsman

Description of provision

Section 145 of the Pensions Act (inserted by Section 5 of the Pensions (Amendment) Act, 2002) prohibits disclosure, without the consent of the Pensions Ombudsman, of any information obtained by an employee of, or an adviser or consultant to, the Pensions Ombudsman while performing or having performed his or her duties.

This section does not prevent disclosure of information:

(a)in a report to the Pensions Ombudsman or

(b)by the Pensions Ombudsman to the Minister or

(c)where the Pensions Ombudsman considers appropriate to publish a report in relation to any investigations or

(d)to the Gardai which may relate to an offence.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The above provision should not be amended or repealed but should be specified in column (3) of the Third Schedule to the Freedom of Information Act.

Reasons for opinion

The Freedom of Information Act contains exemptions which permit the refusal of access to records in certain circumstances and it is considered that these are sufficient to protect those records of the Pensions Ombudsman which are subject to the FOI Acts.

2.Comhairle

Description of provision

Section 18 of the Comhairle Act, 2000 provides that except where otherwise provided by law, a person shall not, without the consent of the Comhairle Board, disclose confidential information obtained by him or her while performing, or as a result of having performed, his or her duties as a member of (1) the Board, (2) staff of the Board (including the Chief Executive) or (3) a committee or as a consultant or adviser to the Board. Contravention of this is an offence with a maximum fine of £1,500. Nothing in this section prevents disclosure of information by means of a report made to the Board or by or on behalf of the Board to the Minister.

Opinion as to whether the provision should be amended, repealed or allowed to continue in force

The provision above should not be amended or repealed but should be specified in Column (3) to the Third Schedule to the Freedom Of Information Act.

Reasons for opinion

The Freedom of Information Act contains exemptions which permit the refusal of access to records in certain circumstances and it is considered that these are sufficient to protect confidential information.

Roinn an Taoisigh

Department of the Taoiseach

15 July 2004

Mr. Seán Fleming T.D.,

Chairman

Joint Committee on Finance and Public Service

Leinster House

Dublin 2

Freedom of Information Act 1997 - Section 32 / Secrecy Provisions

Dear Deputy Fleming,

Please find enclosed the 2004 Report of the Department of Taoiseach in accordance with Section 32 (4) of the Freedom of Information Act 1997. A copy of this report has also been laid before each House of the Oireachtas.

The Report does not differ from the 1999 Report (except for minor editing detail) on the same matter.

The position is that the Department of the Taoiseach has responsibility for theStatistics Act 1993 which contains a secrecy provision.

Whereas the National Archives Act 1986 is largely the responsibility of the Minister for Arts, Sport and Tourism, Section 8 (4) of the Act contains a secrecy provision about the functions concerning the withholding of Departmental records from public inspection, and the Department of the Taoiseach has responsibility for this element.

Therefore, in accordance with Section 32 (3) (a) of the Freedom of Information Act 1997 which states as follows:

“A Minister of the Government shall, in accordance with subsection (6), prepare and furnish to the committee reports in writing - (a) specifying, as respects any enactments that confer functions on that Minister of the Government or on a public body in relation to which functions are vested in that Minister of the Government, any provisions thereof that authorise or require the non-disclosure of a record”.

it falls to this Department to report on this secrecy provision.

Roinn an Taoisigh

Department of the Taoiseach

The attached report outlines the recommendations of this Department in relation to Section 32 of the Freedom of Information Act 1997, with regard to the two Acts above.

In summary the Department recommends that:

(1)Section 8 (4) of the National Archives Act1986 be included in Schedule 3 of the Freedom of Information Act 1997 and

(2)Sections 32 - 35 of part V of the Statistics Act 1993 continue to be excluded from Schedule 3 of the Freedom of Information Act 1997.

Yours sincerely

Síle de Búrca

Section 32 of the Freedom of Information Act, 1997

Report on recommendations of the Department of the Taoiseach with regard to secrecy provisions for which the Department has responsibility.

(a) Section 8 (4) of the The National Archives Act 1986 and (b) The Statistics Act 1993.

(a) THE NATIONAL ARCHIVES ACT 1986:

Background

The National Archives Act 1986 is not specified in the 3rd Schedule of the Freedom of Information Act 1997 (FOI). Consequently it appears that, if a record which is the subject of an FOI request has been withheld from public inspection under Section 8(4) of the National Archives Act 1986, and the case is one in which the head of the public body would, pursuant to the National Archives Act 1986 refuse to disclose the record, the FOI request must be refused.

The FOI Act currently applies to records which are more than 30 years old and have been withheld from public inspection under Section 8 (4) of the National Archives Act 1986, only in cases where the records relate to personal information about the person seeking access to them. It seems likely that in most cases of FOI request for access to such records, the head of the public body will decide that access would be granted, notwithstanding the fact that they have been withheld from public inspection under the National Archives Act 1986. However, in some cases the fact that the record has been withheld under the National Archives Act 1986 may lead the head to decide that the FOI request should be refused.

It seems preferable that FOI requests for access to such records should be refused only if this can be justified on the basis of one of the other exemptions specified in the FOI Act.

Recommendation

Consequently, it is recommended that “National Archives Act 1986 Section 8(4)” be added to the 3rd Schedule of the FOI Act.

(b) THE STATISTICS ACT 1993:

Background

Sections 32-35, of Part V of the Statistics Act 1993 provide for the protection of information furnished to the CSO by a person, undertaking or public authority.

This provision underpins the data collection operations of the CSO and cannot be amended or repealed. It guarantees that all information provided by respondents to CSO statistical inquiries is treated as strictly confidential to that Office. Without this statutory assurance respondents would be reluctant to provide confidential and market sensitive information required for the compilation of official statistics.

Recommendation

For the above reason, a reference to Sections 32-35 in Part V of the Statistics Act 1993, must continue to be excluded from the 3rd Schedule of the Freedom of Information Act 1997.

In summary, the Department recommends:

(i) that Section 8(4) of the National Archives Act 1986 be included in Schedule 3 of the Freedom of Information Act, 1997, and

(ii) That Sections 32-35 of Part V of the Statistics Act 1993, continue to be excluded from Schedule 3 of the Freedom of Information Act, 1997.

_______________

July 2004

Tel: +353 1 670 7444 Locall: 1890 443311 Fax: +353 1 604 1183 Web: www.transport.ie Email: minister@transport.ie

Seán Fleming T.D.,

Chairman,

Joint Committee on Finance and the Public Service

Leinster House

Dublin 2

10 March 2005

Dear Seán

I refer to our previous correspondence regarding the furnishing of this Department’s report, under Section 32(3) of the Freedom of Information Acts, to the Joint Committee.

Please find attached two copies of this report.

I would like to apologise for the delay in producing this report.

Yours sincerely,

Martin Cullen T.D.

Minister for Transport

REPORT TO THE JOINT COMMITTEE ON

FINANCE AND THE PUBLIC SERVICE UNDER

SECTION 32(3) OF THE FREEDOM OF

INFORMATION ACT, 1997 AS AMENDED

Department of Transport

(February, 2005)

Contents

LIST OF ENACTMENTS CONTAINING PROVISIONS THAT AUTHORISE OR REQUIRE THE NON DISCLOSURE OF A RECORD.