4.1 General Principles

injury test: many exemptions require that an injury or harm test be satisfied before material can be withheld. This test requires consideration to be given to whether disclosure would have an adverse or harmful effect on a specific interest (e.g. section 31 requires consideration of whether disclosure could reasonably be expected to have a serious adverse affect on the financial interests of the State).

public interest test: many exemptions contain an overriding public interest test. This requires consideration to be given to whether the public interest in disclosure of a particular record is better served and outweighs the potential harm or injury arising from such disclosure.

class test: a record may be exempt because it falls into a particular class. Relevant exemptions include section 19 (Government Records), a record covered by legal professional privilege, a record which a Secretary General has certified under section 20(1A) as relating to a deliberative process of a Government Department and records related to security and international relations to which section 24(2) applies.

mandatory & discretionary exemptions: some exemptions, such as section 19 (government records), section 20(1A) (records certified by a Secretary General as relating to a deliberative process in a Department) and section 24(2) (certain records related to international relations and security) require a request for a record meeting the relevant conditions to be refused. Other exemptions allow for a certain amount of discretion to be exercised in providing that a request may be refused where the terms of the exemption are met.

protection of third party interests: the Act protects information given to public bodies which is of a personal, commercially sensitive or confidential nature. Such information may be disclosed in the public interest but only following the consultation procedures contained in section 29.

certificates:
Ministerial:- a matter in the area of Law Enforcement, Security and International Relations which is exempt and also of sufficient sensitivity or seriousness may be the subject of a Ministerial Certificate. Such a decision may not be reviewed by the Information Commissioner but is instead subject to review by the Taoiseach and other members of the Government, or on a point of law by the courts. (Sections 25 and 42).

By a Secretary General:- a Secretary General of a Department has the power to certify a record as relating to a deliberative process in a Department of State and to revoke such a certificate when h/she is satisfied that the deliberative process has concluded. A certificate establishes conclusively that the record is exempt i.e. a request for the record must be refused and an application under section 14 or 34 for a review of that decision cannot lie (Section 20(1A)).

4.2 Brief Description of the Exemption Provisions

Meetings of the Government (Section 19)

Subsection (1) of Section 19 protects Government records, records prepared for a member of the Government for the purpose of a Government meeting and records very closely related to such meetings, including a record consisting of a communication between two or more members of the Government concerning a matter that at the time of creation of the record was before or was expected to come before Government. "Government" is defined for the purpose of section 19 as including a committee consisting of members of the Government, the Attorney General or Ministers of State and a committee of officials certified by the Secretary General to the Government as having been established in direct support of Government deliberations.

This protection does not apply: 

• here ten or more years have elapsed since the Government decision to which the record relates or communication between members of the Government was made 

• where the information constitutes factual material and the decision to which it relates has been published. "Factual information" is defined in the Act as "including information of a statistical, econometric or empirical nature together with any analysis thereof".

Section 19(1) is a mandatory exemption i.e. a head has no discretion to release information to which section 19(1) applies prior to the expiry of 10 years.

Subsection (2) of Section 19 is also mandatory and protects a record that contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, such a statement. A request for any record that is subject to section 19(2) must be refused i.e. the protection applies regardless of the date of creation of the record or the date of the Government meeting/decision.

Deliberations of Public Bodies (Section 20)

Subsection (1) of Section 20 provides that access to a record relating to the deliberative processes of a public body may be refused. This subsection does not apply where the public interest would, on balance, be better served by releasing than by refusing to release the record. This subsection does not offer protection to factual information, technical reports or reports on the performance or effectiveness of public bodies. Internal rules and guidelines and reasons for decisions are also excluded.

Subsection (1A) of Section 20 provides that a record shall be refused if the record has been certified by a Secretary General as relating to a deliberative process in a Department of State. There is no discretion where such a certificate is in force: the certificate establishes conclusively that the record is exempt. An application for internal review under section 14 or review by the Information Commissioner under section 34 cannot lie in relation to a decision to refuse a request for a record that is covered by a certificate in force. A certificate must be revoked when the Secretary General concerned is satisfied that the deliberative process has concluded by issuing another certificate as to that fact. Commencing in 2004, each Secretary General must furnish an annual report to the Information Commissioner specifying the number of certificates and the number of revoking certificates issued in the preceding year.

Functions and Negotiations of Public Bodies (Section 21)

Under section 21 records may be protected where disclosure could harm certain operations of a public body i.e. information which could:

• prejudice the effectiveness of test, audit, control, examination or investigative functions of a public body
• have a significant adverse effect on the performance of functions relating to management, including industrial relations and personnel management
• disclose negotiating positions of Government or state agencies.

This exemption does not apply if, in the opinion of the head, the public interest would, on balance, be better served by granting than by refusing the request.

Parliamentary, Court and Certain Other Matters (Section 22)

Section 22 is a mandatory exemption protecting:

• opinion and advice relating to the proceedings of the Oireachtas
• records which would be exempt from production in court either on grounds of contempt or legal professional privilege, or
• the private papers of elected representatives of the European Parliament or of Local or Regional Authorities or Health Boards*.
• records relating to the appointment, or proposed appointment, or business or proceedings of tribunals and inquiries as defined in the section.

(*The private papers of Oireachtas members are excluded under section 46).

Law Enforcement and Public Safety (Section 23)

Section 23 provides that information may be protected where its disclosure could prejudice or impair law enforcement functions or public safety. This protection includes information which could reasonably be expected to endanger the life or safety of any person.

Certain information related to certain law enforcement investigations, the performance of public bodies whose functions include law enforcement functions and the merits or demerits of programmes, schemes or policies for the purpose of law enforcement is excluded from section 23 where the head is satisfied that the public interest would, on balance, be better served by granting than by refusing to grant a request for such information.

Security, Defence and International Relations (Section 24)

Subsection (1) of Section 24 provides that information may be withheld where its disclosure could adversely affect defence, security, international relations, matters relating to Northern Ireland or matters relating to the functions of the Independent Commission for the Location of Victims' Remains.

Subsection (2) of Section 24 provides that information shall be withheld if it is within one or more of paragraphs (a) – (f) of that subsection. These relate to certain confidential diplomatic communications, a record of an EU or international body containing information the release of which is prohibited by the body, intelligence, records related to subversive activity or the tactics, strategy or operations of the Defence Forces and the functions of the Independent Commission for the Location of Victims' Remains.

Ministerial Certificates (Section 25)

Matters coming within the scope of the exemptions in sections 23 or 24 may be the subject of a Ministerial Certificate. Where a Minister is satisfied that information sought is exempt by reference to prejudicing interests in sections 23 or 24, and that the information is of exceptional sensitivity or seriousness, he or she may sign a certificate confirming that the material is exempt. Section 25 outlines procedures to be followed in relation to the issuing of Ministerial certificates. In such cases, periodic review of each certificate is undertaken by other members of the Government rather than by the Information Commissioner (see chapter 6).

A certificate must be withdrawn where such a review finds insufficient grounds for its use. Where a certificate is withdrawn, the refusal to grant access to the information in question may then be subject to review by the Commissioner.

Information Obtained in Confidence (Section 26)

Subsection (1)(a) of Section 26 provides that information shall be protected if (i) it is held on the basis of a mutual understanding of confidence (ii) the information is important and (iii) releasing it would jeopardise the future supply of similar information. However the head has discretion to consider release of the information if on balance, he or she is of the opinion that it is in the public interest to do so. Prior to making a decision on such release, the consultation procedures in section 29 must be followed.

Subsection (1)(b) of Section 26 that information shall be protected if disclosure would constitute a breach of a duty of confidence provided by an agreement, by an enactment that is not specified in the third schedule or otherwise by law. There is no public interest test for such information and the consultation procedure under section 29 does not apply. The term "otherwise by law" would apply to a common law duty of confidence.

Neither Subsection (1)(a) nor (1)(b) of section 26 applies to a record prepared by a head or member of staff in the course of the performance of their official functions unless disclosure of the information would constitute a breach of a duty of confidence provided by an agreement or enactment or otherwise by law AND the duty is owed to a person other than a public body, head or director or member of staff of a public body or a person who is providing a service for a public body under a contract for services.

Commercially Sensitive Information (Section 27)

Section 27 provides that a public body shall refuse to grant access to commercially sensitive information to persons other than the individual or company to whom the information relates. The head has discretion to consider release of the information only in exceptional circumstances where, on balance, he or she is of the opinion that it is in the public interest to do so. Again, the consultation procedures in section 29 must be followed before making a decision on disclosure.

Personal Information (Section 28)

Section 28 protects the privacy of individuals by allowing the withholding of personal information held by a public body from third party access. A definition of "personal information" is contained in section 2 of the Act.

Sensitive Medical Information: Particular procedures must be followed in respect of medical information where the head of the body is of the opinion that its disclosure to the person concerned may be prejudicial to his or her health or emotional well-being. In these circumstances, if requested to do so by the person concerned, the public body shall, instead release the record to an appropriate health professional nominated by the requester.

The head has discretion to consider release of personal information to a third party only in exceptional circumstances where, on balance, he or she is of the opinion that

• the public interest in disclosure outweighs the right to privacy of the individual concerned, or
• where release of the information would benefit the individual.

As with the previous two areas of information, the consultation procedures in section 29 must be followed when a head is contemplating release of personal information on either of these grounds.

Formal Consultation Procedures (Section 29)

Section 29 outlines consultation procedures that must be followed if a public body proposes to release, in the public interest, information to which sections 26(3), 27(3) or 28(5) applies i.e. where it proposes to release information obtained in confidence (as defined in section 26(1)(a)), commercially sensitive information (as defined in section 27(1)) or personal information (as defined in section 28(1)) on the grounds that the public interest would, on balance, be better served in granting the request, and/or in the case of personal information, where the release of the information would benefit the individual. In such a case, the public body is obliged to:

(i) in the case of information obtained in confidence, advise the person who provided the information and, if the head considers it appropriate, the person to whom the information relates, of the intention to release and the public interest grounds involved
(ii) in the case of commercially sensitive or personal information, advise the person to whom the information relates of the intention to release the information and the public interest grounds involved,
(iii) consider the response of the person(s) concerned prior to deciding on
disclosure,
and
(iv) allow the person(s) the opportunity for direct appeal to the Information
Commissioner if the decision of the public body following consideration of
any submissions received is still to release the information (if the decision at that stage is to refuse the request the requester should be advised of his or her right of appeal to the Information Commissioner).

Where a public body is unable to comply with these steps, the consent of the Information Commissioner must be sought prior to finalising the decision.

The normal period for initiating consultation under section 29 is 10 working days from the date of receipt of the request. However this can be extended by a further 10 working days if there are a significant number of records involved or if there is a large number of third parties that must be consulted under this section and invited to make submissions. In all cases, a period of 15 working days is allowed for the person(s) to whom the information relates to make a submission. A final decision on the request must be made within 10 working days of the date of receipt of the submission or the expiry of the 15 working day period for a submission to be made, whichever is the sooner.

Research and Natural Resources (Section 30)

Research: Section 30 provides that information in relation to research may be withheld if premature disclosure of the information would be likely to expose the body concerned or the persons engaged in the research to serious disadvantage.

Natural Resources: Section 30 also provides that information which could reasonably be expected to prejudice the well-being of a cultural, heritage or natural resource or the habitat or species of flora or fauna may be withheld.

Information relating to either category may be released where the public interest would, on balance, be better served by granting than by refusing the request.

Financial and Economic Interests of the State and of Public Bodies (Section 31)

Section 31 provides that information may be protected where

• its disclosure could reasonably be expected to have serious adverse effects for the financial interests of the State or the ability of the Government to manage the economy
• premature disclosure could result in undue disturbance of the ordinary course of business of the community
• access to the record could result in undue benefit or loss to any person.

Information may be released where the public interest would, on balance, be better served by granting than by refusing the request.

Secrecy Provisions in other Legislation (Section 32)

Section 32(1) is a mandatory exemption upholding the operation of specific secrecy provisions in other enactments. However, general "catch-all" secrecy provisions, listed in the Third Schedule to the FOI Act, are set aside, for the purposes of FOI, in favour of the provisions of the FOI Act.

This section also provides for periodic review of secrecy provisions in other enactments by a committee of the Oireachtas.

Disclosing the Existence or Non-Existence of Information

Certain exemptions contain provisions enabling a head to refuse to disclose the existence or non-existence of information. These provisions are found in section 23 (Law Enforcement and Public Safety), section 24 (Security, Defence and International Relations), where disclosure of its existence or non-existence would be likely to prejudice the interests protected by those subsections and in sections 19 (Government records) and 22 (Parliamentary, Court, etc.) where confirmation of the existence or non-existence of the information would be contrary to the public interest.

Similar provisions are contained in section 26 (Information Obtained in Confidence), section 27 (Commercially Sensitive Information) and section 28 (Personal Information) where the information (if it existed) satisfies the terms of the exemption (including the public interest test) and confirmation of its existence or non-existence would have the effect specified in the exemptions i.e. of breaching a duty of confidence or of revealing information obtained in confidence, commercially sensitive information or personal information.

Section 8(5) of the Act (Decisions on Requests and Notification of Decisions) contains additional protection against the disclosure of exempt information in a decision on a request.

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