Text of Section 32

32.-(1) A head shall refuse to grant a request under section 7 if­

(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or

(b) the nondisclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.
(2) A joint committee of both Houses of the Oireachtas shall, if authorised in that behalf by both such Houses (and such a committee so authorised is referred to subsequently in this section as ''the committee")­
(a) review from time to time the operation of any provisions of any enactment that authorise or require the nondisclosure of a record (other than a provision specified in the said column (3)) for the purpose of ascertaining whether, having regard to the provisions, purposes and spirit of this Act­

(i) any of those provisions should be amended or repealed, or

(ii) a reference to any of them should be included in the said column (3),

and

(b) prepare and furnish to each such House a report in writing of the results of the review aforesaid and, if it considers it appropriate to do so, include in the report recommendations in relation to the amendment, repeal or continuance in force of, or the inclusion in the said column (3) of a reference to, any of those provisions.
(3) A Minister of the Government shall, in accordance with subsection (6), prepare and furnish to the committee reports in writing­

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

(b) specifying 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(i) any of the provisions referred to in paragraph (a) should be amended, repealed or allowed to continue in force, or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.
(4) A Minister of the Government shall cause a copy of a report prepared by him or her under subsection (3) to be furnished to the Commissioner and to be laid before each House of the Oireachtas.

(5) The Commissioner may, and shall, if so requested by the committee, furnish to the committee his or her opinion and conclusions in relation to a report under subsection (3) or any matter contained in or arising out of such a report or any matter relating to or arising out of the operation of this section.

(6) The first report under subsection (3) of a Minister of the Government shall be furnished by him or her in accordance with that subsection not later than 12 months after the commencement of this Act and subsequent such reports of that Minister of the Government shall be so furnished not later than 30 days after the fifth anniversary of the day on which the last previous such report by him or her was so furnished.

Introduction

The purposes of this section are:

· to provide for the secrecy provisions of certain enactments to be set aside for the purposes of FOI by their listing at the Third Schedule to this Act
· to uphold the protection of specific information the disclosure of which is prohibited or the 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

When should you consider this section?

This section must be considered when information under consideration is likely to enjoy or qualify for the protections of a secrecy provision in an enactment other than the FOI Act.



Elements of the Section

Section 32 (1)

This subsection provides that a public body shall refuse to grant a request in two circumstances:

Ÿ firstly, if disclosure of the record concerned is prohibited by any other enactment or,
Ÿ secondly, if non-disclosure is allowed by another enactment.

Enactment provisions listed in the Third Schedule to the FOI Act cannot, however, be considered for the purposes of this section.

32.­(1) A head shall refuse to grant a request under section 7 if­

(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or

(b) the nondisclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

Elements to be satisfied:

1. the secrecy provision in the other enactment must:

(i) prohibit the release of the information or

(ii) allow the withholding of the information in certain circumstances.

An example of such a secrecy provision is contained in the Statistics Act, 1993:

Statistics Act, 1993
33(1) No information obtained in any way under this Act or the repealed enactments which can be related to an identifiable person or undertaking shall, except with the written consent of that person or undertaking or the personal representative or next-of-kin of a deceased person, be disseminated, shown or communicated to any person or body except as follows-
(a) for the purposes of a prosecution for an offence under this Act;
(b) to officers of statistics in the course of their duties under this Act;
(c) for the purposes of recording such information solely for the use of the Office in such form an manner as is provided for by a contract in writing made by the Director General which protects its confidentiality to his satisfaction.

2. The information contained in the record must equate to that subject to the secrecy provision

The records under consideration must come within the scope of a secrecy provision in other legislation. For example, the Mergers, Take-overs and Monopolies (Control) Act provides protection specifically for information emanating from investigations:

Section 16 of Mergers, Take-overs and Monopolies (Control) Act, 1978
Table 8(1)- "No person shall disclose information available to him through being present at an investigation held by the Examiner under section 14 [of the Act of 1972] or under the Mergers, Take-overs and Monopolies (Control) Act, 1978."

3. Where the secrecy provision in question outlines particular circumstances or conditions to be met, these circumstances or conditions must apply in the case under consideration

If a secrecy provision sets out any specific conditions, the decision-maker must ensure that these conditions have been met in relation to the particular records under consideration. For example the Genetically Modified Organisms Regulations, 1994 (S.I. No. 345 of 1994) set out particular conditions regarding the treatment of information as confidential:

Genetically Modified Organisms Regulations, 1994 (S.I. No. 345 of 1994)
9(1) Where a person gives a notification or otherwise provides information in pursuance of these Regulations and requests that certain information should be treated by the Agency as confidential information, full justification for that request shall be given with the notification.

(2) Where a request is made under sub-article (1), the Agency shall, following consultation with the notifier, decide which information (if any) shall be treated as confidential information and shall inform the notifier of its decision.

4. Where a secrecy provision outlines exceptions to the protection, the decision-maker consider whether the exceptions apply in the particular case.

Some secrecy provisions contain specified exceptions when the secrecy rule will not apply. In such cases, the provision cannot be relied upon to protect the records under consideration. For example the Central Bank Act, 1989 contains a prohibition on the disclosure of information, but also contains a number of exceptions to this rule:

Central Bank Act, 1989 - Extracts from section 16
16(1) A person, who at the commencement of this section is, or at any time thereafter is appointed, Governor or a Director, officer or servant of the Bank or who is employed by the Bank in any other capacity, shall not disclose, during his term of office or employment or at any time thereafter any information concerning-
(a) the business of any person or body (whether corporate or unincorporated) which came to his knowledge by virtue of his office or employment, or
(b) the Bank's activities in respect of the protection of the integrity of the currency or the control of credit,
unless such disclosure is to enable the Bank to carry out its functions under the Central bank Acts, 1942 to 1989, or under any enactment amending those Acts.

(2) The provisions as to non-disclosure contained in subsection (1) shall not apply to any disclosure -
(a) required by a court in connection with any criminal proceedings,
(b) made with the consent of the person to whom the information relates and, where not the same person, of the person from whom that information was obtained,
(c) where the Bank is acting or has acted in the capacity of an agent for a person, made to the person in respect of that capacity,
...................
and the provisions as to non-disclosure contained in paragraphs (a) and (b) of subsection (1) shall not apply to any disclosure -
(i) in the case of the said paragraph (a), which, in the opinion of the Bank, is necessary for the protection of depositors of money with any person carrying on the business of banking or any business to which section 7(4)(a)(ii) of the Act of 1971 (as amended by this Act) or regulations under section 26 relate or to safeguard the interests of the Bank,
(ii) in the case of the said paragraph (b), made with the consent of the Bank or where the disclosure is not prejudicial to -
(I) the operations of the Bank in any financial market, or
(II) the issue by the Bank of legal tender, or
(III) the integrity of the currency.

5. The secrecy provision must not be listed in the Third Schedule to the Act

The Third Schedule contains a list of general or "catch-all" secrecy provisions which cannot be relied on to protect information under the FOI Act. These provisions are set aside for the purposes of the FOI Act because they are so broad in their scope as to potentially capture large areas of information held by public bodies, whether sensitive or not.

Where an FOI request relates to information encompassed by a secrecy provision listed in the Third Schedule, the exemptions of FOI must be considered instead, and applied if appropriate, to protect the information. The secrecy provision in the other enactment is set aside by virtue of the Third Schedule.






An example of such a general secrecy provision is contained in the Bord Glas Act, 1990:

Bord Glas Act, 1990
23(1) - A person shall not, without the consent of the Board, disclose any information obtained by him while performing (or as a result of having performed) duties as a member, or a member of staff of, or an adviser or consultant to, the Board.

What is the effect of the Third Schedule?

· General or catch-all secrecy provisions listed in the Schedule may not be relied upon to protect information requested under the FOI act
· These general secrecy provisions are set aside for the purposes of FOI only
· The secrecy provisions outlined in the Schedule may continue to be relied upon for handling information requests outside of FOI
· Many of the enactments listed in the Schedule refer to state bodies not yet within the scope of the FOI Act. In practice therefore, many of the provisions of the third schedule will only become relevant for consideration, if the body in question is designated to come within the scope of the FOI Act.
· Where a parent department holds information relating to a state body, not currently within the scope of the FOI Act, such information may come within the scope of the Act. In considering exemption of such information, the secrecy provisions listed in the Schedule may not be relied upon.

Powers of the Commissioner in relation to Decisions under this section

The Commissioner will be entitled to review decisions made in relation to section 32 to determine if the secrecy provision in question, and any discretions allowed under it, were properly applied in the circumstances of the particular case.

Review of Secrecy Provisions

Section 32 sets out a mechanism for review by the Oireachtas of secrecy provisions in all other legislation. The purpose of this review is to ensure that secrecy provisions in other legislation serve to protect genuinely sensitive information only and are in line with the purpose and spirit of the FOI Act.

Mechanism for Review

Role of the Oireachtas Committee

A joint committee of both Houses of the Oireachtas, shall, (if authorised by both Houses to do so), carry out a review of existing secrecy provisions with a view to recommending their retention, repeal, revision or inclusion in the Third Schedule to the FOI Act.

The Committee is then required to prepare and furnish to the Dáil and Seanad a report of its findings. This report may include recommendations in relation to the amendment, repeal, retention of any of the provisions or their inclusion in the Third Schedule to the FOI Act

Responsibilities of Each Minister

Each Minister is obliged to prepare and send a report to the Oireachtas Committee on secrecy provisions under his or her aegis.

1. Contents of Report

The Minister's report should give the following information:

a. identify any provisions that authorise or require the nondisclosure of a record (contained in any enactments that confer functions on that Minister or on a public body under his or her aegis)

b. the opinion of the Minister (and public body, where appropriate) as to whether any of the provisions identified should be amended, repealed or retained or if a reference to any provision should be included in the Third Schedule to the Act. Such opinion should be formed having regard to the provisions, purposes and spirit of the FOI Act

c. the reasons in support of the opinion put forward




2. Circulation of Report

Each Minister is required to send a copy of the report to the Information Commissioner and to lay a copy before each House of the Oireachtas.

3. Timing of Report

Each Minister was required to provide the Committee with the first report not later than 21 April 1999 (i.e. within 12 months of commencement of the Act). Subsequent reports should be furnished to the Committee not later than 30 days after the fifth anniversary of the day the last report was furnished. The second reports of Ministers should therefore be due on or before 21 May 2004.

Role of the Commissioner

The Commissioner may give his/her views or opinions to the Committee on:

· any reports sent to him by individual Ministers
· any matter arising out of such a report
· any matter relating to or arising out of the operation of this section generally

To assist the Committee in carrying out its review, it may also require the Commissioner to furnish his or her views on these matters.




Central Policy Unit advises:

That decision-makers identify:

· Departments recently undertook a comprehensive review of their secrecy provisions for the Oireachtas Committee on Legislation and Security. This material should be revisited and updated for the purpose of this section.
· All secrecy provisions in enactments under the aegis of your Department or related to the functions or activities of your body
· Those general or 'catch-all' provisions in the Third Schedule contained in enactments under their aegis

Decision-makers should familiarise themselves with the circumstances in which it is appropriate to use these provisions and any conditions or exceptions applying.