Committee Reports::Report No. 07 - Review under Section 32 (2) of certain provisions under the Freedom of Information Act 1997::13 September, 2006::Appendix

Thank you for your letter in relation to my Department’s report to the Joint Committee under Section 32 of the Freedom of Information Act 1997, as amended by the Freedom of Information Act 2003.

The Information Commissioner disagrees with our opinion that the non-disclosure provisions contained in Section 11 of S.I. 83 of 2003, European Communities (Authorisation, Placing on the Market, Use and Control of Plant Protection Products) Regulations 2003 should be excluded from the Third Schedule of the FOI Act.

These regulations implement the provisions of Council Directive 91/414/EEC and apply to a restricted range of information supplied by companies seeking authorisation for the marketing and use of their plant protection products. Under the Directive, member States are obliged to ensure that information supplied by applicants involving industrial and commercial secrets is treated as confidential if the applicant so requests. The text goes on to describe in detail the information that must not be granted confidential status.

In brief, the Information Commissioner argues that as the confidentiality provision in Article 14 of EU Directive 91/414/EEC is without prejudice to EU AIE Directive 90/313/EEC (Access to Information on the Environment Directive) that it should also be without prejudice to the FOI Act.

My officials have sought the advice of the Office of the Attorney General in this regard and that advice supports the exclusion of the confidentiality provision from the Third Schedule of the FOI Act. This is on the basis that the information involved is not information relating to the environment. However, even if it were relevant, the advice of the AG is that the AIE regime is entirely separate and distinct to the FOI regime. The exemption in Directive 91/414/EEC with regard to the AIE Directive cannot be relied upon therefore, in claiming that the transposing regulations should be included in the Third Schedule to the FOI Acts. The AG’s Office maintains that my Department would be going beyond what is necessitated by EU Directive 91/414/EEC if we were to provide that the confidentiality requirement was subject to the provisions of the FOI Acts. Only that which is necessary for giving effect to the Directive may be implemented through regulations under the 1972 European Communities Act.

In conclusion therefore, on the basis of the AG’s advice my Department cannot agree that the provisions of Section 11 of S.I. 83 of 2003 should be included in the Third Schedule of the Freedom of Information Acts.

I refer to you letter of 29 March 2006 concerning the application of Section 32 of the Freedom of Information Acts 1997 and 2003.

In relation to the secrecy provision of Section 30 of the Fisheries (Amendment) Act 1997, I am satisfied that it is appropriate that this provision should now be listed in the Third Schedule to the Freedom of Information Acts.

I refer to your letter of 29 March 2006 in relation to Section 32 of the Freedom of Information Act 1997 and its application to the Dormant Accounts legislation (i.e. Section 26(2) of the Dormant Accounts Act 2001 and Section 24(2) of the Unclaimed Life Assurance Policies Act 2003).

It is important to note that S 26(2) of the Dormant Accounts Act 2001 and S 24(2) of the Unclaimed Life Assurance Policies Act 2003 concern the disclosure of information by financial institutions to an Inspector engaged by the Irish Financial Services Regulatory Authority (IFSRA) to ensure compliance with the legislation.

Both sections entitle an institution to refuse to disclose information to an Inspector, including refusal to give an Inspector any document, where that information/document is, in the opinion of a court, based on professional legal privilege. There are important legal principles at play here and it is important to note that fact and the fact that the non-disclosure provisions are quite narrow and that it requires court approval in each specific case.

Any removal of the non-disclosure provisions would, moreover, be effectively an extension of the FOI Acts to e.g. private financial institutions. This, of course, would be both ultra vires the Act and contrary to public policy.

It is important also to note that the FOI Acts apply in full in relation to all records held by the Department in relation to its activities under the dormant accounts legislation. Section 26 (2) of the 2001 Act and Section 24(2) of the 2003 Act cannot be invoked to justify non-disclosure of any such records.

The matter has been further considered in my Department and our strong recommendation remains that Section 26 (2) of the Dormant Accounts Act 2001 and Section 24(2) of the Unclaimed Life Assurance Policies Act 2003 should remain excluded from the Third Schedule of the FOI Act. In reconsidering this matter, the Department consulted with IFSRA in the context of that organisation’s role in overseeing compliance by financial institutions with the dormant accounts legislation. IFSRA strongly supports the Department’s approach and recommendation on this matter.

I refer to your letter dated 29^th March in relation to non-disclosure provisions and the Information Commissioner’s opinions on these provisions. I would like to thank you for providing me with the opportunity to respond to the opinions of the Information Commissioner. I will address the issues raised by the Information Commissioner in relation to section 53 of the Education Act, 1998; sections 27 & 28 of the Commission to Inquire into Child Abuse Act, 2000 and section 28 of the Residential Institutions Redress Act, 2002.

In relation to section 53 of the Education Act, 1998, having considered the issues raised by the Information Commissioner, I am of the opinion that this section should be excluded from the Third Schedule of the FOI Act and, indeed, that this particular section should not be repealed, as suggested by the Information Commissioner.

I believe that greater public access to information on schools is necessary and desirable. Accordingly, I decided some time ago to put in place arrangements for the publication of school inspection reports that arise from the general inspection programme for schools. The reports will be published on my Department’s website. This means that the public will have full access to inspection reports without charge, yet at the same time the potentially very damaging appearance of crude ‘league tables’ is avoided. Without section 53 this sort of balanced decision would not have been possible.

I believe that there is no benefit in releasing information that could in any way lead to the compilation of ‘league tables’. This would only have the negative effect of creating an unfair and unhealthy competition amongst schools based on the narrow focus of final exam results.

It is important to note that the responses from schools will also be published on my Department’s website at the same time as the inspection reports.

The publication arrangements were put in place at the end of January 2006 and all inspection reports arising from inspections commenced on or after 6 February 2006 will be published. It is expected that some of the first reports to be published will appear in the near future.

Reports to be published will include all Whole School Evaluation reports on primary and post-primary schools; Subject inspection reports on post-primary schools; and thematic inspections on schools (for example focussed inspections on ICT or an aspect of the curriculum).

In relation to section 27, 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.

It would be unfair to the person giving evidence to subsequently allow scrutiny and release of material which is very likely to be highly sensitive and personal. It would equally be unfair to the reputation of any alleged wrongdoer who had no opportunity, at the time, to question the person giving such evidence.

Regarding the Information Commissioners comments on a possible expiry date in relation to section 27 (5) of the Commission it is my view that this subsection should not be amended. Individuals who were involved in the hearings conducted by the Confidential Committee did so on the understanding that this section would apply to records in relation to their experiences.

Records which are in the possession of this Department regarding Industrial and Reformatory schools which may have been provided to the Commission as part of their investigation will continue to be treated in the normal manner in relation to future requests from researchers/historians.

Section 7 (6) of the Commission to Inquire into Child Abuse Act 2000 provides that prior to dissolution of the Commission it will make decisions in relation to records held by it and my Department is of the opinion that this is the appropriate method by which the availability of these records can be finally considered.

The non-disclosure provisions of Section 28 are some what less onerous than those in Section 27 and provide 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.

The purpose of the prohibition on the disclosure of information under section 28 of the Commission to Inquire into Child Abuse Act is similar to the purpose of section 28 of Residential Institutions Redress Act, 2002, in relation to the protection of individuals’ rights. The Commission will publish a report at the end of its deliberations which will be based both on the records it has received and the evidence it has gathered during its hearings.

It is my view that section 28 of the Commission to inquire into Child Abuse Act 2000 should not be added to the Third Schedule of the FOI Act.

Section 28 of the Residential Institutions Redress (RIR) Act 2002 prohibits any person from revealing any information provided to the Residential Institutions Redress Board or the Review Committee and obtained by that person in the course of their work for the Board or Review Committee.

The purpose of the prohibition on the disclosure of information under section 28 of the RIR Act is twofold:

◦to protect victims - many victims will not want their experience or their application to the Redress Board to be disclosed.

◦to take into account that the Redress Board does not make findings of fault in respect of any particular case; it merely assesses if the injury is consistent with abuse having occurred.

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.

Regarding the Information Commissioners comments on a possible expiry date in relation to section 28 it is my view that this subsection should not be amended. It is in the public interest that survivors of abuse have access to a sympathetic and confidential forum, should they choose it, in order to obtain redress. Survivors of abuse who applied to the redress scheme and who have already received an award, did so on the understanding that the process would be confidential. Changing section 28 would fundamentally alter the terms of the scheme to which the survivors applied. As well as this, alleged wrongdoers may be left open to questioning when they have had no opportunity to defend themselves in this forum.

In addition, section 28 has been amended by Section 34(h) of the Commission to Inquire into Child Abuse (Amendment) Act 2005. This provides that-

“(5A) Nothing in subsection (1) operates to prohibit the production of a document prepared for the purposes or in contemplation of an application to the Board or a submission for a review by the Review Committee, or given in evidence in such application or review, to—

(a)a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or

(b)such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.

(5B) Nothing in subsection (1) operates to prohibit the giving of information or evidence provided or given to the Board or the Review Committee to—

The purpose of this amendment was to allow for a complaint against a solicitor to be fully investigated. The Law Society of Ireland raised a concern regarding Section 28 of the Redress Act 2002 which prohibits the disclosure of certain information. The Law Society is asked on occasions to investigate complaints against solicitors acting on behalf of applicants to the Redress Board. As is often the case in order to respond in detail to the complaint the solicitor would have to disclose information or provide documentation which would contravene Section 28 of the Redress Act 2002. Any person who has a complaint against a solicitor should be able to have that complaint fully investigated by the relevant authorities. This amendment has allowed this to happen.

Section 28 (7) and (8) of the Residential Institutions Redress Act provides that prior to their dissolution the relevant bodies will make decisions in relation to records held by them and my Department is of the opinion that this is the appropriate method by which the availability of these records can be finally considered.

Joint Committee on Finance and Public Service

Review of non-disclosure provisions and section 32 of the FOI Act

Attached draft response for the Minister’s signature in relation to the review of non-disclosure provisions by the Joint Committee on Finance and Public Services.

The Information Commissioner was asked, by the Joint Committee on Finance and Public Service, to provide an opinion on non-disclosure provisions of Government Departments. The following opinions have been provided in relation to Education-related non-disclosure provisions:

◦Consideration should be given to repealing Section 53 of the Education Act and while the Section remains in force that it should be included in the Third Schedule of the FOI Act to allow for full consideration of any FOI requests for access to school records.

◦That Section 27 of the Commission to Inquire into Child Abuse Act, 2000 be amended to include an expiry date to allow archivists / historians future access to records.

◦That Section 28 of the Commission to Inquire into Child Abuse Act, 2000 be added to the Third Schedule of the FOI Act.

◦That Section 28 3 (b) & Section 28 (6) of the Residential Institutions Redress act, 2002 be repealed. If Section 28 (6) is not repealed that it be amended to include an expiry date to allow archivists / historians future access to records.

◦That Section 28 of the RIR Act be added to the Third Schedule of the FOI Act.

◦to provide for the secrecy provisions of certain enactments to be set aside for the purposes of FOI by their listing in the Third Schedule of the FOI Act.

◦to uphold the protection of specific information the disclosure of which is prohibited or the non-disclosure of which is authorised by other enactments.

◦To provide for review of secrecy provisions in such enactments by a joint committee of the Oireachtas.

A draft response is enclosed for approval. Also attached, for information, is a copy of the report submitted by this Department to the Joint Committee in 2004.

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

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

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 27, 28, 31, 33 and 34 of the 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 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:

(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—

(i)the overall results in any year of students in a particular school in an examination, or

(ii)the comparative overall results in any year of students in different schools in an examination,

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.

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—

(a)for the purpose of the performance of the functions of the person under this Act,

(b)to the legal representatives of the parties to any proceedings referred to in subsection (3),

(c)to a member of the Garda Síochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent the continuance of an act or omission constituting a serious offence, and

(d)to an appropriate person (within the meaning of the Protections for Persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to life or to prevent the continuance of abuse of a child.

(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 heard 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.

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—

(a)to a member of the Garda Síochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent an act or omission constituting a serious offence, and

(b)to an appropriate person (within the meaning of the Protections for Persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to life or to prevent the continuance of abuse of a child.

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—

(a)a document created by the Commission, a Committee, a person conducting an examination pursuant to section 14(5) or an inquiry officer, or

(b)a document given or sent to a person referred to in paragraph (a) and in the possession or control of any person so referred to.

(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.

(a)a document is produced or sent by a person (“the sender”) to a person referred to in subsection (1)(a) for the purposes of the functions of the Commission, and

(b)an order for the discovery of the document is made by a court against the sender at a time when it is in the possession or control of the person to whom it was so produced or sent,

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))

Section 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.

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 of 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.

(a) provided to or prepared by the Board and where appropriate the Review Committee, or

(b) prepared by a person for the Board or the Review Committee in the course of the performance of the functions of such person as a member of the Board, Review Committee, a member of the staff of the Board or the Review Committee or an adviser,

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

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—

(a)a member of the Garda Síochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent an act or omission constituting a serious offence, and

(b)to an appropriate person (within the meaning of the Protections for Persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to the life or to prevent the continuance of abuse of a child.

(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 Date 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.

(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.

I refer further to your letter of 29^th March in the above and welcome the opportunity to respond to the observations of the Information Commissioner on these issues.

I have taken the opportunity to re-examine each of the non-disclosure provisions in the light of the Information Commissioner’s comments. I am attaching a detailed response in respect of each of the provisions for the consideration of the Joint Committee. On foot of this re-examination I can agree that no harm could arise from including sections 21(3) and 22(4) of the Competition Act 2002 in the Third Schedule, as these are merely drafting directions for the Competition Authority in publishing reports, and could not be invoked to refuse records under section 32(1) of the FOI Act.

On examination of each of the other non-disclosure provisions in question, I have concluded that there are substantive concerns about listing these provisions in the Third Schedule. While there are public interest considerations favouring the inclusion of the provisions in the Third Schedule there are strong counter-balancing public interest reasons not to do so in each case, and I take the view that on balance the public interest does not favour such inclusion. While each of the non-disclosure provisions has its own particular character, and the risks posed by a listing in the Third Schedule vary, common concerns emerge as follows:-

•The records referred to in the non-disclosure provision are not accessible under FOI, so there is no practical benefit to listing the provisions in the Third Schedule. For the avoidance of doubt, it is better that they are left out (applies to the Industrial Relations Acts, the Company Law Enforcement Act 2001, and the Companies Act 1990).

•There are risks to the continued voluntary disclosure, by individuals or bodies, of the sensitive information needed in regulating corporate entities, accountancy bodies etc. While the protections afforded by the FOI Act provide some reassurances, the fact that guarantees of confidentiality cannot be offered will undoubtedly deter some individuals coming forward with information. There is a similar risk that voluntary disclosure by regulatory bodies in other jurisdictions would cease. The delicate balance which exists between the rights of the regulatory authorities and private corporate entities and individuals have served the public interest well in recent years, and it is argued that the public interest in maintaining this balance outweighs the public interest in change at this time (applies to the Companies Act 1990, Company law Enforcement Act 2001, the Competition Act 2002 and the Companies (Auditing and Accounting) Act 2003).

◦The provisions are part of the corpus of property rights enshrined in the Constitution, and in national and international law, and the balance of public interest would not be served by making specific property rights subservient to the FOI Act (applies to the Industrial Designs Act 2001 and the Industrial Designs Regulations 2002).

◦The risk to the public interest in maintaining valuable public services by a perception that the confidentiality of sensitive private information could not be guaranteed, particularly in the vulnerable start-up phase of the body (applies to the Personal Injuries Assessment Board Act 2003).

I trust that the Joint Committee will give due weight to these considerations, and to the more detailed analyses in the attached report in arriving at its conclusions.

Review of the Department’s non-disclosure provisions under Section 32 of the Freedom of Information Act

Response to the Oireachtas Joint Committee on Finance and Public Service to a request for observations on the views of the Information Commissioner

Industrial Relations Acts 1946, 1969 and 1990

Section 25(6) of the Industrial Relations Act 1990 (protects records of the Labour Relations Commission)

Section 14 of the Industrial Relations Act 1969 (protects records of Rights Commissioner Service of LRC)

As explained in the Department’s section 32 report of June 2004, the above secrecy provisions were included in the Third Schedule of the FOI Act when it was enacted in 1997. However, this had no practical effect, as the records of the Labour Relations Commission, including the Rights Commissioner Service, did not come within the scope of FOI.

The scope of FOI was extended to the Labour Relations Commission in 2001 by statutory instrument. However, records relating 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 were exempted, and remain exempted, from the provisions of FOI. The inclusion of these sections of the Industrial Relations Acts under the Third Schedule has no practical effect, as these records of the Labour Relations Commission and the Rights Commissioner Service do not come within the scope of FOI. No FOI access points to these records would be eroded by their removal from the Third Schedule.

The exclusion of sections 25(6) and 14 from the Third Schedule would bring that Schedule into conformity with the statutory instrument extending FOI to the LRC and Rights Commissioner’s Service, and avoid confusion regarding the application of FOI legislation to the records of these bodies. It would also allow the Labour Relations Commission and the rights commissioners to operate as dispute resolution machinery of the State with the continued confidence and trust of the parties that appear before them. 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 and the Rights Commissioner Service, are not undermined. The continued inclusion of the above sections in the Third Schedule of the FOI Act could threaten this trust and confidence. It is vitally important that the Labour Relations Commission and the Rights Commissioner Service maintain the confidence and trust of the parties that avail of their services.

Section 22 of the Industrial Relations Act 1946 (protects records of the Labour Court)

In addition to seeking to ensure the continued effectiveness of the Labour Court and allow it to continue to have access to sensitive information which it can treat as confidential, the Department of Enterprise Trade and Employment is also looking for consistency between the provisions of the FOI Act and the Regulations extending FOI to the Labour Court.

While FOI has not as yet been extended to the Labour Court, a decision has been taken by the Government to extend FOI to the Court, and arrangements are in hand to give effect to this decision. It is proposed that FOI will be extended to the Labour Court on a similar basis as it applies to the LRC i.e. that only administrative functions will be subject to FOI.

Section 22 allows for the non-disclosure of information which comes into the possession of the Labour Court in the course of its role in the resolution of industrial relations disputes.

S.22 was included in the Third Schedule of the FOI Act when it was enacted in 1997. However, this has had no practical effect, as the records of the Labour Court did not come within the scope of FOI.

Allowing Section 22 of the 1946 IR Act to remain in the Third Schedule of the FOI Act is totally at variance with what is proposed in the regulations. The regulations do not propose to allow FOI access to information received by the Labour Court in the course of proceedings before it, but rather to administrative records of the Labour Court only.

The Information Commissioner considers that to delete S. 22 from the Third Schedule would erode an FOI access point. However, this is difficult to understand, because the regulations which will extend FOI to the Labour Court will not allow for access to non-administrative records, so a request for such records could not be entertained. In the light of this, one must draw the conclusion that no existing FOI access point to these records would be eroded by the removal of the provision from the Third Schedule, since such records have never been subject to FOI and this will continue to be the case when FOI is extended to the administrative functions of the Labour Court.

If S. 22 were to continue to be listed in the Third Schedule then this would suggest that any information obtained by the Labour Court in the course of proceedings before it could be released under FOI without the consent of the parties to the proceedings. Effectively then, no information could be treated as confidential by the Labour Court. However, this is not the case.

Excluding S. 22 from the Third Schedule would bring that Schedule into conformity with the proposed Regulations and avoid confusion as to the application of FOI legislation to the records of the Labour Court. It would also allow the Labour Court to operate as a dispute resolution body with the continued confidence and trust of the parties which appear before it.

The prohibition on the disclosure of confidential information obtained by the Labour Court, without the consent of the parties to proceedings before the Court, was granted to ensure that the bonds of trust, confidentiality and discretion that disputant parties expect and demand, when they use the services of the Labour Court, are not undermined. It is vitally important that the Labour Court maintains this confidence and trust.

Companies Act 1990; Company Law of Enforcement Act 2001

The Department notes the comments of the Information Commissioner in relation to the non-disclosure provisions of the Companies Act, namely Section 21 of the Companies Act 1990 and Section 17 of the Company Law Enforcement Act 2001 (CLEA).

At the outset the Department wishes to draw the Committee’s attention to the fact that the Office of the Director of Corporate Enforcement (ODCE) is subject to FOI in respect of its general administrative functions only. This was put in place by the Oireachtas in the legislation establishing the ODCE (Section 112 of CLEA) by providing an amendment to the FOI Act to:-

(i)Provide a class exemption from FOI for records held or created by the ODCE, other than records concerning the general administration of the ODCE.

(ii)Include the ODCE as a body subject to FOI, to bring the general administration records of the ODCE within FOI.

A similar exemption from the provisions of FOI is in place for the Director of Public Prosecutions.

The Department also draws the Committee’s attention to the views of the Director of Corporate Enforcement, who was consulted in the matter and whose views are set out below. The Director made strong representations to the Department, arguing the importance of the exemption from FOI, that exists by virtue of section 112 of CLEA, for the proper conduct of his investigation and enforcement work. The Director has also commented on the Information Commissioner’s response to this Department’s Section 32 Report to the Joint Committee.

The Companies Acts 1963-2005 provide the regulatory framework under which companies are registered, operate and terminate. The company form is the principal incorporation vehicle for businesses and other organisations in Ireland. The regulatory framework established under the Companies Acts involves the designing and maintenance of carefully drawn balances between the freedom of a company to do things and the need for some means of controlling abuses of that freedom. This balance is under continuous review in light of domestic and international developments.

The means of controlling corporate abuse in this country comprise a combination of private and public enforcement measures. Central to the latter, are the means by which a public authority (now mainly the Director of Corporate Enforcement and the Courts) may take investigative action in relation to a company in appropriate circumstances. What is essential here is that appropriate means of action are available, can be operated effectively in practice and can achieve their purpose of contributing to the control of corporate abuse.

Part II of the Companies Act, 1990 (“the 1990 Act”) as enacted made provision for “investigations” into the affairs of companies. The main type of investigation provided for was an investigation by inspectors appointed by the Court (Section 7-13). Another was an investigation into the ownership and control of a company by inspectors appointed by the Minister (Section 14-16). A third mode was a power to require the production of books or documents of a company and the furnishing of explanations of them; this power was exercisable by the Minister or by a person authorised by the Minister (Section 19-21). 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, under section 34 of that Act and S.I. No. 524 of 2001, the Minister retained responsibility for five particular section 19 investigations that were initiated prior to, and were on-going at, the commencement of the CLEA. Three of these five investigations are still in being.

Section 21 of the Companies Act 1990 prohibits disclosure of information obtained under section 19 or 20, except in certain limited circumstances. It is an offence to disclose such information in contravention of that section. In practice, permitted disclosures are confined to disclosures for specific statutory purposes or disclosures to a limited number of “competent authorities”. The statutory purposes now include the investigation or prosecution of offences under certain specified legislation, the assessment of tax liabilities and the performance by Tribunals of their functions (Section 21(1) as amended by Acts of 1999 and 2001). It is important to understand the purpose of section 19/20 and the purpose of the non-disclosure provisions of section 21.

The procedure provided for in Section 19-21 of the 1990 Act is in the nature of a preliminary enquiry or examination. It provides a statutory basis for intervention by the Director of Corporate Enforcement (or the Minister in the case of the five section 19 investigations for which the Minister retained responsibility) to uncover information relating to a company which can subsequently be used in company law, criminal or other investigations. It is intended as an efficient and effective means of establishing on a prima facie basis whether or not something requires further more comprehensive regulatory action such as a full inquiry under the jurisdiction of the Courts.

The statutory prohibition on disclosure of information obtained under sections 19 and 20 enables this preliminary investigation process to remain intact because it protects potentially innocent parties from possible public opprobrium. If the information obtained under section 19 or 20 was capable of being disclosed or published, other than in the discrete circumstances provided for in section 21, it would significantly change the nature of a section 19 examination. To avoid injustice being done to the character and reputation of potentially innocent parties, who may be indirectly associated with or have conducted perfectly legitimate business with a company in which potential wrongdoing may have taken place, section 19 examinations would have to be transformed into full blown investigations such as an investigation by inspectors appointed by the High Court under Section 8 of the 1990 Act. The non-disclosure provision of section 21 is, therefore, an essential counter-balance against the intrusive provisions of section 19/20. Any interference with the counterbalancing provisions of section 21 would cause that balance to fall apart.

The Department’s experience of the operation of section 19 examinations is that a wide prohibition on disclosure of information on company books and documents is necessary, so that the company and its officers can be assured that the information gathered will have a high degree of protection from public disclosure and that there are no unforeseen risks attached to their co-operating with an investigation. If that assurance cannot be offered, companies may well decide to resist the conduct of section 19 examinations, either through the courts or otherwise. This is a real concern, evidenced by the case cited by the Director of Corporate Enforcement.

The section 19-21 process has been successfully employed by the State in uncovering significant wrongdoing in corporate Ireland. For example the section 19 examination of Ansbacher (Cayman) Limited provided the grounds for the appointment of the High Court Inspectors investigation of this company, which in turn provided other relevant authorities with significant assistance in fulfilling their respective statutory functions.

The section 19-21 procedure has served the public interest very well in recent years. To include section 21 in the Third Schedule would be an unwelcome interference with such a useful investigative procedure. While it may serve to satisfy a public interest in accessing records through FOI, it could diminish the State’s ability to tackle corporate misconduct. The Department submits that the greater public interest lies in ensuring our regulatory regime, of which section 19-21 is an essential element, provides an effective means of supervising corporate behaviour and controlling corporate abuse.

The confidentiality provision of section 17 reflects the fact that the work of the Director involves the collection and evaluation of sensitive information relating to individuals and companies under investigation. Unauthorised disclosure of the information would be damaging to the proper and effective discharge of the Director’s functions. The provision is necessary to encourage confidential reporting of suspected offences to the Director and to protect any such information from inappropriate disclosure.

The arguments made above in relation to section 21 of the 1990 Act apply equally to section 17 of the 2001 Act.

A further concern in relation to section 17 relates to the receipt by the Director of information from other competent authorities, both here and abroad, either by way of legislative provisions or memoranda of understanding. It is crucial to such information gateways that there is a duty of confidentiality in respect of such information. The possibility that such information could be disclosed on foot of an FOI request would seriously undermine the position, reputation and effectiveness of the Director.

The Information Commissioner’s comments about section 17 deferring to the FOI Act do not take account of section 112 of the Company Law Enforcement Act 2001, which specifically amended section 46(1)(b) of the FOI Act to exempt ODCE investigation and enforcement work from FOI.

The ODCE is responsible for regulating the compliance by companies and related persons with the requirements of the Companies Acts. Companies as a class are not subject to FOI. Consequently, there is no particular reason why the documents of such companies should be subject to FOI, merely by virtue of their being in possession of the ODCE.

It is in the public interest that there be a prompt investigation of suspected corporate misconduct so that legal action can be taken to remedy the illegality and/or to sanction the persons in default. We submit that such an investigation is a far greater public interest than that justifying access under FOI.

Section 112 of the Company Law Enforcement Act 2001 exempts ODCE investigation and enforcement work from the FOI Act. In doing so, the Oireachtas recognised that the exemption creates conditions for the efficient and effective investigation of potential corporate misconduct. It offers reassurance to corporate interests that cooperation with an investigation holds no unforeseen risks.

The exemption and the related section 21 of the Companies Act 1990 (as amended) and section 17 of the Company Law Enforcement Act 2001 specify that documentation legally acquired or demanded pursuant to the ODCE statutory remit may only be used for specified purposes, and it provides that:

-the Information Commissioner is similarly precluded from accessing the documents held by the ODCE, in order to review if public disclosure is warranted under a ‘public interest’ test or otherwise.

Clearly, the exemptions are also intended to prevent companies and associated interests raising legal obstacles to justify not cooperating with the ODCE and any legitimate enquiries into potential misconduct. This risk is a real and genuine concern. When the Department of Enterprise Trade and Employment decided in 1998 to conduct an examination of the books and documents of two related companies, it took five years, three High Court challenges and two Supreme Court decisions before access was granted. Significantly, the documents in question were eventually provided in 2003 by which time the ODCE had been established in a manner where the disclosed documents were not subject to FOI.

Comments on Response of Information Commissioner to Continuing Partial Exemption of ODCE from FOI

As indicated above, there are substantial reasons for retaining the present exemption of ODCE investigation and enforcement work from the FOI Act and for opposing the inclusion of such work in column (3) of the Third Schedule of the Act. The Response of the Information Commissioner does not appear to fully appreciate these points in the context of ODCE activity affected by both section 21 of the 1990 Act and section 17 of the 2001 Act.

In her Response to the exemption in relation to section 17, the Commissioner suggests that the phrase “except in accordance with law” in the section may mean that it is subservient to the FOI Act. In making this point, the Commissioner seems not to be aware that section 112 of the Company Law Enforcement Act 2001 specifically amended section 46(1)(b) of the FOI Act to provide that ODCE records (other than those relating to ODCE general administration) were not within the scope of the FOI Act. The same restriction applies inter alia to the records of the Office of the Director of Public Prosecutions, a body like the ODCE which has prosecutorial functions.

Industrial Designs Act, 2001; Industrial Designs Regulations, 2002

In short, the Information Commissioner proposes to include the above Sections of the Industrial Designs Act, 2001 and Regulation 31 (2) in the Third Schedule of the FOI Act. The rationale for this decision is based on the overall purpose of these provisions which is essentially to protect the confidentiality of commercially sensitive information. In this sense, the IC is not in favour of duplication of effort and considers that the protections afforded by Sections 12 (2) (b)(ii) and 27 of the FOI Act provide adequate safeguards in this area.

It is not possible to agree with the Information Commissioner’s recommendation in this regard and it is the Department’s view that the retention of these non-disclosure provisions under Industrial Design legislation must be retained. Our reasons are as follows:

•Industrial Property rights are treated under law in the same manner as any other property right. The Industrial Design Act states that in terms of infringement of a design, all relief by way of damages etc. is available to the proprietor as is available in respect of the infringement of any other property right. In that sense, property rights enjoy special protection under the Irish Constitution - Article 40 - which indeed states that if the States passes a law to restrict property rights it may have to compensate the owner of the property rights. One could reasonably suggest that if the State in some way, unwittingly or otherwise, jeopardised a property right albeit an industrial property right, it is liable to be sued. It is therefore crucial that any non-disclosure provisions which exist are governed by the substantive legislative provisions in prevailing law on property rights as opposed to more general legislative provisions which are geared towards making maximum information in public bodies more freely available;

•Ireland’s legislation on Industrial Designs has been developed also to include Community and international obligations in this area. Specifically, Article 59 of the Community Design Regulation No. 6/2002 obliges Member States to comply with certain non-disclosure provisions where an applicant has applied for deferred publication of a design. Article 50.2 of the Regulation clearly states that neither the representation of the design nor any file relating to the application shall be open to public inspection. The provisions of the Industrial Design Act, 2001 referred to above transpose that requirement in Irish law. It would not be acceptable to subvert a specific Community obligation such as this to legislation of more general application such as Freedom of Information and Ireland could be found to be seriously in default of such obligation arising from our Community membership;

•In considering the non-disclosure provisions of the FOI Act referred to by the IC i.e. Sections 12 (2) (b) (ii) and 27 of the FOI Act, and without prejudice to the fundamental arguments presented above, we do not consider the FOI provisions provide adequate safeguards:

This Section applies in a case where a decision maker is going to grant a request and the only issue under consideration being the form in which that request will be granted. In terms of the specific non-disclosure requirements of design law which prevent disclosure, this Section does not provide any level of protection whatsoever.

This Section provides the defence against grant of an FOI request on the grounds that commercially sensitive information might be disclosed. Admittedly, this Section provides some measure of protection, however we would argue that it does not provide sufficient safeguards given the fundamental issue of the property rights involved. Under Section 27, the three grounds on which a defence can be based are:

(b)financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

(c)information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

Subsection (a) is the only subsection which might provide some measure of protection against forced disclosure of a design but it does not provide adequate protection. As far as subsection (b) is concerned, to disclose information/drawings of a design prior to its publication would not involve disclosure of financial, scientific or technical data. Depending on what is covered by the term “commercial information” this may not be involved either. Design relies on features of aesthetic quality which make the article appealing and therefore marketable. The option to defer publication of a design which is at issue here is of particular importance to several sectors of industry who cannot afford to publish their design before the products incorporating the design are put on the market lest such disclosure jeopardise the success of a commercial operation based on exclusive design characteristics. This is particularly the case in the field of fashion whereby letting competitors know in advance the general line of the design of a future collection could be detrimental to the commercial success of that line and wipe out the entire investment made in that collection. This is the nature of the fundamental property right which is involved and hence the potential exposure for the State in terms of being sued should such disclosure, which is specifically prohibited under Industrial Design legislation, be made. This is apart altogether from the fact that the State would be in non-compliance with a provision of property law in the State under national, Community and international obligations.

In summary, there is an absolute need keep the above provisions of Industrial Designs legislation outside of Schedule 3 of the FOI Act.

Competition Act 2002

The Department disagrees with the Information Commissioner’s analysis for the following reasons:

1.Section 26 prohibits the disclosure of confidential information if in the opinion of the FOI Head its disclosure would be likely to prejudice the giving to the body of further similar information. The section contains an objective and a subjective element, and the Authority’s FOI Head cannot be sure that his or her opinion will stand in the event of an appeal to the Information Commissioner. This possibility means that:

a.The Competition Authority cannot guarantee confidentiality to those disclosing information, and this fact in itself will prejudice the giving of such information.

b.In its capacity as the national authority charged with the enforcement of both Irish and EU competition law, the Competition Authority is privy to sensitive and confidential information regarding possible breaches of the law. In particular, pursuant to Council Regulation 1/2003, it regularly receives confidential information from other Member States of the European Union, and if section 32 of the Competition Act 2002 is included in the Third Schedule, it will not be able to give national authorities of other Member States, or the European Commission, an unqualified assurance that it will protect the confidentiality of their documents. This would pose serious problems in relation to the proper operation of the European Competition Network (ECN), which is the network of European competition authorities established under Regulation 1/2003, and which includes the European Commission.

2.Section 27 and section 28 of the FOI Act precludes the disclosure of a record that contains trade secrets or sensitive commercial information, or personal information. Again, the sections contain provisos which would allow the Information Commissioner to overturn the decision on appeal. This means that the Authority could not give an unqualified guarantee to merging parties that their sensitive commercial information would retain its confidentiality. This would have serious repercussions on the Authority’s statutory function of ensuring that mergers which would substantially lessen competition are blocked, as parties would be unwilling to disclose all necessary information. It would be likely to have a particular impact on the notification of mergers voluntarily (only mergers above a certain threshold, together with media mergers, are mandatorily notifiable). The voluntary notification procedure is an important tool which enables the Authority to ensure that small localised mergers do not go ahead if they would substantially lessen competition in a particular market.

For these reasons, Section 32 of the Competition Act 2002 should remain outside the Third Schedule to the FOI Act.

Having further considered the other two provisions discussed, it is now concluded that sections 22(4) and 21(3) of the Competition Act are not non-disclosure provisions as envisaged by Section 32 of the FOI Act, and should not have been considered under the FOI Section 32 review process. The two provisions provide direction to the Competition Authority in drafting certain reports, but they could not be invoked under Section 32 of the FOI Act to refuse access to records, whether listed in the Third Schedule or not. If these two provisions were to be listed in the Third Schedule to the FOI Act, it would therefore have no practical effect. The Department can therefore concede that there is no harm arising from including these two provisions in the Third Schedule.

Companies (Auditing and Accounting) Act 2003

The Companies (Auditing and Accounting) Act, 2003 provides for the establishment of the Irish Auditing and Accounting Supervisory Authority (Supervisory Authority). The Supervisory Authority was formally established as a company in December 2005 and designated as the Supervisory Authority by the Minister for the purposes of the 2003 Act on 3 January 2006. The functions of the Supervisory Authority are to supervise the regulatory functions of the recognised accountancy bodies and other prescribed accountancy bodies.

It is submitted that Section 31 of the Companies (Auditing and Accounting) Act, 2003 (the 2003 Act) should not be inserted in the Third Schedule of the FOI Act.

Department of Enterprise, Trade and Employment has set out the case for non-inclusion of Section 31 in the Third Schedule of the FOI Act in its Section 32 Report. This submission contains the substance of the Department’s case. This is summarised as follows:

1. Sensitive nature of confidential information: Section 31 imposes a statutory duty of confidentiality on the directors, management, staff and advisors of the Supervisory Authority and recognises the highly sensitive nature of the information that the Supervisory Authority holds and the significant damage that could arise as a result of disclosure in circumstances other than those provided for by the 2003 Act. The legislature’s view as to the seriousness of this matter is evidenced by the creation of an indictable offence for breaches of this provision. 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. Release of confidential information held by the Supervisory Authority has the potential to have serious consequences for individuals, firms, companies and other associated parties, for example, shareholders and clients.

2. Ability to provide guarantee of confidential treatment necessary for effective discharge of Authority’s functions: The requirement for confidentiality is paramount in the context of the Supervisory Authority’s ability to effectively discharge its remit under sections 23, 24, 25 and 26. Sections 23, 24, 25 and 26 of the Act grant the Supervisory Authority the power to

•Intervene in the disciplinary processes of the accountancy bodies where it deems it necessary;

•Carry out independent investigations of possible breaches of standards of prescribed accountancy bodies by their members;

•Require accountancy bodies to amend their rules and their disciplinary and investigation procedures;

•Review the accounts of certain categories of companies and apply to the Courts to compel Directors of a company to amend accounts that are not in compliance with the Companies Acts.

Any inability to provide cast iron guarantees of confidentiality to interested parties will have serious adverse affects on its ability to perform its statutory mandate, for example, by reducing the willingness of complainants to come forward and co-operate with the Supervisory Authority. The Supervisory Authority’s powers to compel persons or bodies other than prescribed accountancy bodies under its supervision to cooperate or to provide information is very limited under the Act.

The prohibition contained in Section 31 of the Act is imperative to obtaining the cooperation of persons whose co-operation is entirely voluntary, including for example, members of accountancy bodies, clients of members and other third parties). In the absence of an absolute guarantee that any information provided will not be subject to disclosure, the Authority would lose its ability to obtain vital evidence and to effectively discharge its functions.

The possible release of information obtained by the Authority pursuant to the FoI Act has the potential to seriously impair the Authority’s ability to enter into information-sharing arrangements with bodies outside of the State which have similar functions to the Supervisory Authority, thereby impairing its ability to both discharge its functions and to contribute to coordinated EU wide and International oversight and supervisory activities.

If section 31 were to be added to the Third Schedule, the Supervisory Authority would no longer be capable of providing meaningful assurances that any information provided by another body would not be subject to release without its consent.

3. Exemptions available under the FoI Act: The Commissioner, in her response, has agreed that there are issues of confidentiality and, in that context, cites the exemptions available to heads under sections 23, 26 and 27 of the FoI Act. While the FoI Act provides certain exemptions that the Authority might deem relevant to the foregoing, the simple fact that such exemptions are subject to a “public interest” test injects uncertainty as to whether information may be disclosed by the Authority at a future time. Under the circumstances, it is submitted that the Authority needs to be afforded absolute certainty that it can offer absolute guarantees of confidentiality that cannot subsequently be subject to challenge. The Authority’s need to have such certainty outweighs the possible benefit of being able to disclose information to persons and bodies other than those listed in section 31(3) pursuant to a request made under the FoI Act.

4. “Absolute nature” of the provision: The Commissioner, in her response to the Department’s section 32 report, asserts that sections 31 is absolute in nature. It is submitted that this is not an accurate assessment of the provision. Section 31 is not an absolute bar to obtaining confidential information held by the Authority; section 31(3) contains a list of persons and bodies to whom the legislature has determined that it is appropriate for the Authority to disclose confidential information it obtains under certain circumstances. Such persons and bodies include those within its supervisory remit. Consequently, it provides enough flexibility to the Authority to disclose confidential information to such persons and bodies if it deems it appropriate and necessary and if such disclosure would be in accordance with the Act.

5. Other relevant provisions in the Act: The Act contains many provisions that ensure that much of the administration and business of the Authority is subject to public scrutiny and not subject to the restraints imposed on the Authority by section 31. It is submitted that consideration of whether section 31 should be added to the Third Schedule must have regard to the provisions of the Act designed to bring certain information to the attention of the public. It is submitted that these provisions were inserted by the legislature to ensure that the Authority is capable of being held publicly accountable without prejudicing its ability to discharge its functions. It is further submitted that these provisions are adequate to ensure the accountability of the Authority and should not, therefore, be supplemented by a potentially seriously damaging, and unnecessary, requirement.

Personal Injuries Assessment Board Act 2003

The Personal injuries Assessment Board is not yet subject to FOI, and no decision has yet been made concerning a timeframe for the inclusion of the PIAB under the Freedom of information Act. Therefore, the inclusion of Section 73 of the Personal Injuries Assessment Board Act 2003 on the Third Schedule would have no immediate effect.

In the longer term, one must consider the implications of including this provision in the Third Schedule. The PIAB is performing a function which was hitherto performed by the Courts i.e. the assessment of damages in certain personal injuries cases. To this end, the PIAB has access to very sensitive records which are necessary for it to perform its functions. Essentially, these are records of private matters between individual claimants and a responding insurer, and it is unlikely that any public interest can be served by allowing access to these matters under FOI. While it could be argued that there is a public interest in a person having access to records about him or her self held by the PIAB, access to this information is already possible under the Data Protection Act. It is noted that the Courts Service is exempted, by the FOI Act, from FOI as regards its non-administrative functions, and it is difficult to see why a lower level of protection would be afforded to records held by the PIAB and which relate to essentially the same matters as were dealt with by the Courts, and still are in many circumstances. Additionally, the PIAB is a relatively new body, established to reduce the costs of processing personal injuries claims where liability is uncontested. If there is a perceived difference between the protection afforded to sensitive records in cases administered by the PIAB and those dealt with by the Courts, this could be viewed as an opportunity to undermine the important role of the PIAB, and would not be in the public interest.

For the reasons given above, the inclusion of Section 73 of the Personal Injuries Assessment Board Act 2003 in the Third Schedule is not recommended at this stage. However, at the time of the next review, consideration would be given to including the provision in the light of the evolution of the Board at that stage.

- - - - - - - - - - - - - - - Forwarded by Patrick Timmins/Office/Oireachtas on 10/03/2006 11:35 - - - - - - - - - - - - - - -

CC:“Ainle NiBhriain” <Ainle_NiBhriain@environ.ie>, “Joe Mooney” <joe_mooney@environ.ie>, <Mary.McLarney@finance.gov.ie>, <marie_o’brien@ombudsman.gov.ie>

I refer to the Department of Environment, Heritage and Local Government’s Section 32 report to the Joint Committee on Finance and the Public Service and I would like to clarify the section of our report which deals with the Radiological Protection Institute of Ireland Act 1991

In our report, please note that the non disclosure reference referring to Section 36 includes reference to Section 36 (1)(a-d) While we agree with Section 36 (1) (d) should remain in the third schedule, Section 36 (1) (a-c) should be excluded from the third schedule. The reason is that they relate to confidential information becoming available by virtue of the provision of three specified International Conventions in the area of protection of nuclear materials, early notification of a nuclear accident and assistance in the event of a nuclear accident.

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.

Is faoi rún agus chun úsáide an té nó an aonán atá luaite leis, a sheoltar an ríomhphost seo agus aon comhad atá nasctha leis. Má bhfuair tú an ríomhphost seo trí earráid, déan teagmháil le bhainisteoir an chórais.

Deimhnítear leis an bhfo-nóta seo freisin go bhfuil an teachtaireacht ríomhphoist seo scuabtha le bogearraí frithvíorais chun víorais ríomhaire a aimsiú.

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager.

This footnote also confirms that this email message has been swept by anti-virus software for the presence of computer viruses.

I refer to your letter of 29 March 2005 regarding the above and I apologise for the delay in replying to the Committee.

In response to the Joint Committee’s invitation to respond to the Information Commissioner’s opinions which are at variance with the recommendations contained in the Minister for Finance’s Second Report under Section 32(3) of the FOI Act, I am attaching my views in relation to each of the 4 provisions involved, i.e. Section 35 of the Ethics in Public Office Act 1995, Section 5(3) of the Public Service Management Act 1997, Section 13 of the National Pensions Reserve Fund Act 2000, and Section 18 of the National Development Finance Agency Act 2002.

Addition to the Second Report by the Minister for Finance to the Joint Committee on Finance and the Public Service under section 32(3) of the FOI Acts

I would also like to take this opportunity to draw your attention to Section 16 of the Houses of the Oireachtas Commissions Act 2003. This provision, which was overlooked in drawing up the Second Report, sets out the functions of the Secretary-General of the Commission in terms broadly similar to those for Secretaries General set out in the Public Service Management Act 1997. In line with this approach, Section 16(4)(d) of the Houses of the Oireachtas Commission Act 2003 provides that drafts of the Statement of Strategy of the Commission are exempted from release under FOI for 5 years.

In accordance with section 32(4) of the FOI Acts 1997 and 2003, I will be forwarding an Addition to the Second Report to the Joint Committee on Finance and the Public Service under section 32(3) of the FOI Acts, covering section 16 of the Houses of the Oireachtas Commission Act 2003.

Response to the Report of the Information Commissioner to the Joint Committee on Finance and the Public Service for the purpose of Review of Non-Disclosure Provisions in accordance with the Freedom of Information Act, 1997 [section 32]

Ethics in Public Office Act 1995 - Section 35

Section 35 of the Ethics in Public Office Act 1995 is framed to provide for a minimal level of disclosure of information in certain specific situations so as to ensure the proper workings of the Ethics legislation. This framework is based on the principle of personal privacy and involves a clearly defined set of circumstances in which disclosure of defined information can take place to defined persons in defined situations. With limited exceptions, statements of interests of persons occupying designated positions under the Ethics in Public Office Act in respect of themselves and of spouses and children are furnished on the strict understanding that they cannot be disclosed outside the situations specified in the legislation.

While the FOI Act contains exemptions for information provided in confidence and personal information etc., these protections are not equivalent to the framework provided for in the Ethics in Public Office Act which provides a much higher level of protection for such information. Including section 35 of the Act in the Third Schedule to the FOI Act would introduce an element of uncertainty by allowing for the possibility for consideration to be given to the disclosure of personal information in particular cases by FOI decision makers and the Information Commissioner. The possibility that statements of interest could be disclosed pursuant to FOI requests would undermine the very strong presumption of the right to privacy in Ethics legislation. The Explanatory Memorandum to the 1995 Ethics Bill makes this presumption very clear by confirming that statements of interests (other than those of office holders and special advisers) will be treated as confidential. The point was emphasised in the course of parliamentary debates by the Tanaiste and the Minister of State sponsoring the Bill.

For these reasons, it is considered inappropriate to include section 35 of the Ethics in Public Office Act 1995 in the Third Schedule to the Freedom of Information Acts. To do so would breach the assumption of privacy in the Ethics legislation and violate the minimalist and restrictive approach on the disclosure of personal informal provided for in the Act.

Public Service Management Act 1997 - Section 5(3)

Section 5(3) of the Public Service Management Act 1997 provides that the FOI Act does not apply to drafts of Department/scheduled Office’s Statements of Strategy for a period of five years. The opinion of the Information Commissioner has been considered and the view remains that this provision should not be changed and that it should not be included in the Third Schedule to the FOI Act for the following reasons:

The Statement of Strategy is a document fundamental to the governance of a particular Department and its activities over a period of up to five years. The final agreed Statement of Strategy is a public document, readily available in hard copy or accessible on the Department’s web site and it is that document, not any earlier draft, which sets out the course to be followed in the Department for either five years or any shorter term the individual Minister may serve in the particular Department.

The Public Service Management Act was enacted after the Freedom of Information Act was enacted and section 5(3) was included to take account of the new situation which the FOI legislation created. The Government took the view that, in preparing Strategy Statements, Ministers and Secretaries General needed to have a space where all relevant options could be robustly explored without the expectation of subsequent disclosure during the five year time frame. In the light of the experience gained in preparing at least two rounds of Strategy Statements, it is believed that the Government took the only practicable approach to this issue. While the Freedom of Information Act contains a number of sections safeguarding certain categories of documents from public disclosure and while some of these could provide protection for parts of drafts from certain Departments, there is no provision in that Act which provides the comprehensive certainty of section 5(3).

Accordingly, the balance of the public interest requires that section 5(3) of the Public Service Management Act be retained and that it not be included in the Third Schedule to the FOI Act.

National Pensions Reserve Fund Act, 2000 - Section 13

The Information Commissioner disagrees with the recommendation that Section 13 of the National Pensions Reserve Fund Act 2000 should not be included in the Third Schedule of the FOI Acts 1997 and 2003.

It is considered that the inclusion of Section 13 of the NPRF Act in the Third Schedule to the FOI Act would not have any practical effect as:

•the National Pensions Reserve Fund (NPRF) itself does not fall under the scope of FOI, as it not a scheduled body under the FOI Act; and,

•Section 13 of the NPRF Act requires the authorisation of the NPRF Commission where anyone employed or engaged by the NPRF wishes to release confidential information to a third party. As such it would not apply to an FOI decision-maker in another public body that already had records from the NPRF in its possession. NPRF records held by other public bodies could of course be released if it is appropriate to do so in the light of the provisions of the FOI Acts. (If other FOI bodies have any records from the NPRF, the presumption would be that the Agency is cognisant that the records are subject to FOI in those bodies.)

The addition of section 13 of the NRPF Act to the Third Schedule of the FOI Acts would not serve to increase access to information as the National Pensions Reserve Fund does not currently fall within the scope of the FOI legislation. The section would not appear to have any application to an FOI decision-maker in another public body. Whether or not the Fund should be subject to the provisions of FOI legislation is an issue which would fall to be considered on its own merits, and is outside the context of the review of section 32 of the FOI Act.

National Development Finance Agency Act 2002 - Section 18

Section 18 of the National Development Finance Agency Act 2002 is identical to the equivalent provision in the NPRF Act. The Information Commissioners cites the protections for confidential information and commercially sensitive information in the FOI legislation and states that NDFA should not “de facto” be removed from the reach of the FOI legislation.

It is considered that the inclusion of section 18 in the Third Schedule to the FOI Act would not have any practical effect as:

•the NDFA itself does not in any case fall under the scope of FOI, as it not listed in the schedule of bodies subject to the relevant legislation;

•Section 18 is concerned with ensuring that the consent of the Agency is obtained to any disclosure of confidential information as defined in the NDFA Act by members of the NDFA organisation and its advisers. As such it would not apply to an FOI decision-maker in another public body that already had records from NDFA in its possession. NDFA records held by other public bodies could be released if it is appropriate to do so in light of the provisions of the FOI Acts. (If other bodies have any records from the NDFA, the presumption would be that the Agency is cognisant that the records are subject to FOI in those bodies.)

The question of whether the Agency should be subject to the provisions of FOI legislation is an issue which would fall to be considered on its own merits, and is outside the context of the review of section 32.

I refer to your letter of 29 March, 2006 regarding the Report of the Information Commissioner under section 32(5) of the FOI Act concerning secrecy provisions contained in enactments.

The report provided by my Department under section 32(4) of the Act to the Information Commissioner outlines twenty-four enactments containing secrecy provisions. The Commissioner disagrees with the position I have taken in respect of the four following enactments containing secrecy provisions;

-Section 12, Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993

I have outlined below my position in relation to the four enactments on which the Commissioner disagrees with me. I strongly believe that these enactments should remain excluded from the Third Schedule to the Act.

(1)Section 12 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993

It is my view that in the nature of an effective lawful interception regime, that the particular instances of use of this form of special investigative technique must remain undisclosed. I consider that to reveal even the existence of records in any particular case, irrespective of actual disclosure, would be sufficient to alert persons who may be the subject of interception of the fact of interception, thereby completely nullifying the efficacy of this investigative technique. The 1993 Act already provides for judicial oversight of the operation of the Act and a statutory complaints system is available to those who consider that the provisions of the Act may have been breached in any instance. I do not propose to place this section in the Third Schedule to the FOI Act. I regard this provision as a very important measure in the fight against serious crime and it is my view that in placing this section in the Third Schedule would weaken its effectiveness.

In relation to the application of the FOI Acts to the Office of Refugee Application Commissioner (ORAC) and the Refugee Applications Tribunal (RAT), it remains my strong position that both of these offices should remain outside of the provisions of the FOI Acts. I now outline my reasons for maintaining my position;

¢ The information held by both bodies is personal information regarding applicants in the main which is made available as a matter of course or routinely to applicants at both the ORAC and RAT stages (sections 13 and 16 of the Refugee Act). A copy of the papers is also made available to the UNHCR by virtue of provisions in the Act. In addition, the Chairperson of RAT also has the power (section 19(4)(a)) under the 1996 Act to publish decisions of the Tribunal.

¢ Section 19(3) of the Refugee Act is concerned with the protection of the identity of applicants under the asylum process. Access to information through the use of the FOI Acts by applicants or appellants could be used to gain knowledge on the lines of reasoning taken by decision makers / Tribunal Members, as the case might be, as well as possible patterns in decision making; and this information could be used in an unscrupulous manner to attempt to abuse the asylum system. Such information were it released could have a very significant impact on the management of judicial review proceedings taken against the ORAC, RAT or myself. In this regard it should be noted that in 2005, the overall success rate of applicants (i.e. at first instance and appeal stages combined) was just over 10% which means that almost 90% of all applicants are shown not to be in need of refugee protection as defined in the Refugee Act and by extension the Geneva Convention:

¢ According to the UNHCR, confidentiality is one of the key issues in asylum applications and as such any possibility that information provided by asylum applicants would not remain confidential could have very significant detrimental effects on the integrity of the asylum determination system in this country - the organs of the determination process themselves are independent of myself in the discharge of their functions which is also an indication as to the importance attached to maintaining the integrity of the system in Ireland;

¢ There are practical difficulties associated with extending the Acts to the ORAC and RAT which centre on the need to potentially consult with persons who are no longer resident or present in the State by virtue of having been removed from the jurisdiction on foot of a deportation order or EU Dublin II Regulation order or having evaded such orders;

¢ A necessity to devote resources to dealing with requests in the particular circumstances of the two Bodies where the overwhelming majority of information held is personal information, would detract significantly from the core function of the organisations concerned and therefore the efficiency of the asylum process;

¢ Both the ORAC and RAT publish annual reports and are accountable through me to the Oireachtas on matters relating to public expenditure etc. Also, statistical and other information (number of staff. costs\expenditure, etc) is routinely provided in respect of each body through replies to PQs. press queries and other outlets; and,

¢ In respect of RAT given that it is a quasi- or semi-judicial body and therefore akin to a Court, it should be similarly excluded from the FOI Acts.

Section 97(2) of the Employment Equality Acts 1998 and 2004 provides that any information furnished to or acquired by the Director of the Equality Tribunal, the Labour Court, or any person acting on their behalf, in the course of an investigation, or by virtue of section 94 to 96 of the Act, shall not be disclosed or published except:

with the consent of the person furnishing the information and any person to whom it might relate;

in a decision of the Director of the Equality Tribunal or a determination of the

The main functions of the Equality Tribunal and the Labour Court under the Employment Equality Acts 1998 and 2004 are to carry out investigations where wrongdoing or breaches of the law are alleged or suspected. The Department is of the opinion that records created for the purposes of examinations/investigations by these bodies should be afforded the same protections as apply to records of bodies protected under section 46 of the Freedom of Information Act.

Section 46 of the Freedom of Information Act as it stands does not cover records applying to examinations/investigations by the Labour Court and the Equality Tribunal under the Employment Equality Acts 1998 and 2004, it is essential that records applying to examinations/investigations conducted by these bodies enjoy the same level of protection as they do currently (being exempted under Section 32(1)(a) of the Freedom of Information Act). If Section 97(2) of the Employment Equality Acts 1998 and 2004 was to be included in the Third Schedule, this could constitute some reduction of protection of records applying to examinations/investigations by these bodies under the Employment Equality Acts 1998 and 2004.

I will not support any reduction of protection of these records or change in their status in relation to the Freedom of Information Act, other than their inclusion in Section 46 of the Freedom of Information Act, if the Act is amended at a later date.

(4)Section 18 Par. 9 of part 1, Schedule 2, Private Security Services Act, 2004

I have after considerable consideration decided to exclude the Private Security Authority (PSA) from the terms of the Freedom of Information Act. It should be noted that the key decision making function of the PSA, i.e. the decision to grant or refuse a licence is subject to Section 27 of the Private Security Services Act, which obliges the PSA to notify the applicant or licensee of the grounds for making its decision and the procedure for appealing it.

The PSA is legally obliged to hold and make available for inspection a register of licensees under Section 33 of the Private Security Services Act 2004. The PSA has made the register of licensed companies available on-line at www.psa.gov.ie and for inspection at its headquarters. The register is updated in line with each license issued. In due course the register will be available for inspection at Garda stations.

In relation to Section 18 and Paragraph 9, Part 1 of the Second Schedule of the Private Security Services Act. 2004, this section prohibits members of the staff of the PSA, members of the Authority and others from disclosing information obtained in the course of their duties, without the consent of the Authority. I consider that these provisions should continue to be excluded from the Third Schedule of the FOI Act in order to protect the confidentiality of the work of the members and staff of the PSA and the Private Security Appeal Board. I may consider the inclusion of these provisions in the Third Schedule of the FOI Act in tandem with any decision I may make in the future to include the PSA in the First Schedule of the FOI Act.

I have given a great deal of consideration on the inclusion of the PSA in Schedule 1 of the Act and have decided to exclude it for the moment on the basis that it is a small emerging organisation with a considerable body of work. I consider that subjecting the PSA to the provisions of the Freedom of Information Act at this time, would place an additional burden and would in my view impair the effectiveness of the organisation.

In relation to the four enactments above which are excluded from the Third Schedule to the Act. I do not having given considerable consideration to the Commissioner’s report, propose to amend my position on any of the four enactments. The position I have taken is done so to protect and ensure the effective implementation of policy and procedures in my department. I consider any deviation from my response as provided in the report to the Commissioner would seriously impair my department’s effectiveness to discharge its mandate.

Appendix 5

Response from Government Ministers to the Oireachtas Joint Committee on Finance and the Public Service to a request for observations on the views of the Information Commissioner

Joint Committee on Finance and Public Service

Review of non-disclosure provisions and section 32 of the FOI Act

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

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

Industrial Relations Acts 1946, 1969 and 1990

Companies Act 1990; Company Law of Enforcement Act 2001

Industrial Designs Act, 2001; Industrial Designs Regulations, 2002

Competition Act 2002

Companies (Auditing and Accounting) Act 2003

Personal Injuries Assessment Board Act 2003

Response to the Report of the Information Commissioner to the Joint Committee on Finance and the Public Service for the purpose of Review of Non-Disclosure Provisions in accordance with the Freedom of Information Act, 1997 [section 32]

Ethics in Public Office Act 1995 - Section 35

Public Service Management Act 1997 - Section 5(3)

National Pensions Reserve Fund Act, 2000 - Section 13

National Development Finance Agency Act 2002 - Section 18