02/11/99 - Secrecy Provisions. Commissioner's report to the Joint Committee on Finance and the Public Service

Report of the Information Commissioner to the Joint Committee on Finance and the Public Service under section 32(5) of the Freedom of Information Act 1997

I hereby furnish a report under section 32(5) of the Freedom of Information Act (FOI) 1997 giving my opinion and conclusions in relation to reports furnished to me by Ministers of the Government under section 32(4) of the Act.

General Observations

Before commenting on the reports furnished by individual departments I should like to explain my views generally on the question of separate secrecy provisions outside the FOI Act which prohibit disclosure or authorise non-disclosure of certain records or information.

The FOI Act confers important access rights on citizens in a manner which is consistent with the right to privacy and the public interest and subject to necessary exceptions, which are dealt with in considerable detail in the Act. The operation of a general access regime of this kind over a range of public bodies should, over time, lead to greater certainty both among public servants and the public as to what information should properly be released and what should not. The existence of separate secrecy provisions in legislation other than the FOI Act is not helpful to this process of achieving certainty. In some cases such secrecy provisions may themselves be subject to exceptions or qualifications which can create uncertainty or confusion. In other cases the secrecy provisions may, without good reason, be wider than corresponding exemptions permitted by the FOI Act. As a general point, I do not accept that merely because a secrecy provision in another statute broadly serves the same purpose as an exemption in the FOI Act, this is a good enough reason for leaving the secrecy provision outside the Third Schedule to the FOI Act.

In a number of the reports, Departments made reference to secrecy provisions of legislation and I commented that it was not clear to me that the provision did, in fact, authorise or require the non-disclosure of records. If further investigation shows that these Departments are correct in their interpretations, I would generally recommend the addition of such provisions to the Third Schedule.

I note that a number of provisions contained in the reports of various Departments are designed to protect investigations where wrongdoing or breaches of the law are alleged or suspected. I accept that public bodies may not be fully confident that the exemptions in the FOI Act are sufficiently strong to protect investigations of this kind. Clearly, there is a significant public interest in ensuring that investigations are not impeded in any way. In my view these fears are misplaced and the exemptions in the FOI Act are sufficient to protect these records. In some cases, a public body's main function may be to carry out investigations. In so far as the Oireachtas concludes that there is a strong case for records of such a body to be exempt, the inclusion of specified records of the body in section 46 of the FOI Act may be the appropriate mechanism.

I also recognise that, in some cases, separate secrecy provisions are required to prevent unauthorised disclosure of information. In such cases repeal of the provision would not be appropriate. However, there is no reason why such provisions should not be included in the Third Schedule to the FOI Act. This would permit access to the records subject to all the safeguards in that Act.

I wish to refer at this point to the existence of secrecy provisions which are required as a result of the State's obligations under various EU treaties. It seems to me that it would not be permissible to include such provisions in the Third Schedule if the effect of so doing would be to breach the State's treaty obligations. At the same time, I believe that such provisions should not be wider than the requirements of EU directives and that due regard should be had to the spirit of the FOI Act in drafting them. I accept that, in some instances, EU directives may place greater restrictions on access to information held by public bodies than the restrictions permitted by the FOI Act or, indeed, permitted by the access regimes contained in the national legislation of other States. I would express the hope that a more liberal approach to access to information will emerge at EU level over time, which will result in no curtailment of the rights afforded by the FOI Act.

Having made these general observations, I will now comment on the reports of each individual department.

Department of Agriculture and Food

Department of Defence

Department of Education and Science

Department of Enterprise, Trade and Employment

Department of Arts, Heritage, Gaeltacht and the Islands

Department of Finance

Department of Foreign Affairs

Department of the Marine and Natural Resources

Department of Tourism, Sport and Recreation

Department of Social, Community and Family Affairs

Department of the Taoiseach

Department of Public Enterprise

Department of Health and Children

Department of the Environment and Local Government

Department of Justice, Equality and Law Reform

Kevin Murphy
Information Commissioner
2 November 1999