FREEDOM OF INFORMATION ACT, 1997

• (c) a person who is a member of any of such other (if any) classes of person as may be prescribed.]

20. Deliberations of public bodies.

20.—F37[(1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes).

• (1A)
• (a) Notwithstanding subsection (1), a head shall refuse to grant a request under section 7 in respect of a record in relation to which a Secretary General of a Department of State has issued a certificate in writing stating that the record contains matter relating to the deliberative processes of a Department of State.

• (b) Where a certificate under paragraph (a) is in force and the Secretary General of the Department of State concerned is satisfied that the deliberative processes concerned have ended, he or she shall, by certificate in writing, revoke the certificate and, thereupon, paragraph (a) shall cease to apply.

• (c) A certificate under this subsection shall be final and, accordingly, an application for a review under section 14 or 34 in relation to a decision under paragraph (a) shall not lie.

• (d) A Secretary General of a Department of State shall, in each year after the year 2003, furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year under paragraph (a) and the number of certificates so issued under paragraph (b).]

• (2) Subsection (1) does not apply to a record if and in so far as it contains—

• (a) matter used, or intended to be used, by a public body for the purpose of making decisions, determinations or recommendations referred to in section 16,

• (b) F37[(b) factual information,]

• (c) the reasons for the making of a decision by a public body,

• (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body,

• (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme.

• F38[(3) 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.]

21. Functions and negotiations of public bodies.

21.—(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to—

• (a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits F39[conducted by or on behalf of a public body] or the procedures or methods employed for the conduct thereof,

• (b) have a significant, adverse effect on F39[the performance by a public body of any of its functions] relating to management (including industrial relations and management of its staff), or

• (c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body.

• (2) Subsection (1) shall 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 under section 7 concerned.

22. Parliamentary, court and certain other matters.

22.—(1) A head shall refuse to grant a request under section 7 if the record concerned—

• (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,

• F40[(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court, or]

• (c) consists of—

• (i) the private papers of a representative in the European Parliament or a member of a local authority or F41[…] or

• (ii) opinions, advice, recommendations, or the results of consultations, considered by—

• (I) either House of the Oireachtas or the Chairman or Deputy Chairman or any other member of either such House or a member of the staff of the F42[Houses of the Oireachtas Service] for the purposes of the proceedings at a sitting of either such House, or

• (II) a committee appointed by either such House or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the F42[Houses of the Oireachtas Service] for the purposes of the proceedings at a meeting of such a committee.

• F43[(1A) A head may refuse to grant a request under section 7 if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of—

• (a) a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,

• (b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, or

• (c) any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to inquire into specified matters,

and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.

• (1B) Subsection (1A) does not apply to a record in so far as it relates to the general administration of, or of any offices of, a tribunal or other body or an individual specified in that subsection.]

• (2) Where a request under section 7 relates to a record to which subsection (1)(a) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would be contrary to the public interest, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

23. Law enforcement and public safety.

23.—(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to—

• (a) prejudice or impair—

• (i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

• (ii) the enforcement of, compliance with or administration of any law,

• (iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property,

• (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal,

• (v) the security of a penal institution,

• (vi) the security of the Central Mental Hospital,

• (vii) the security of a building or other structure or a vehicle, ship, boat or aircraft,

• (viii) the security of any system of communications, whether internal or external, of the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution,

• F44[(aa) endanger the life or safety of any person,]

• (b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence, or

• (c) facilitate the commission of an offence.

• (2) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph F44[(aa)] (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

• (3) Subsection (1) does not apply to a record—

• (a) if it—

• (i) discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or

• (ii) contains information concerning—

• (I) the performance of the functions of a public body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or

• (II) the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by a public body,

and

• (b) 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.

• (4) In subsection (1) “penal institution” means—

• (a) a place to which the Prisons Acts, 1826 to 1980, apply,

• (b) a military prison or detention barrack within the meaning, in each case, of the Defence Act, 1954,

• (c) Saint Patrick's Institution, or

• (d) an institution established under the Children Act, 1908, in which young offenders are detained.

24. Security, defence and international relations.

24.—(1) A head may refuse to grant a request under section 7 in relation to a record F45[…] if, in the opinion of the head, access to it could reasonably be expected to affect adversely—

• (a) the security of the State,

• (b) the defence of the State,

• (c) the international relations of the State, F46[…]

• (d) matters relating to F47[Northern Ireland, or]

• F48[(e) matters relating to the functions of the Independent Commission for the Location of Victims’ Remains (within the meaning of the Criminal Justice (Location of Victims' Remains) Act, 1999).]

• (2) F49[A head shall refuse to grant a request under section 7 if the record concerned]—

• (a) contains information—

• (i) that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State, or

• (ii) that relates to—

• (I) the tactics, strategy or operations of the Defence Forces in or outside the State, or

• (II) the detection, prevention, or suppression of activities calculated or tending to undermine the public order or the authority of the State (which expression has the same meaning as in section 2 of the Offences against the State Act, 1939), F48[or]

• F48[(III) the functions of the Commission referred to in subsection (1)(e),]F50[or]

• F50[(IV) the functioning of the Independent Monitoring Commission (within the meaning of the Independent Monitoring Commission Act 2003),]

• (b) contains a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government,

• (c) contains a communication between a Minister of the Government and a diplomatic mission or consular post of the State,

• (d) contains information communicated in confidence to any person in or outside the State from any person in or outside the State and relating to a matter referred to in subsection (1) or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence,

• (e) contains information communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body, or

• (f) is a record of an organisation, organ, institution or body referred to in paragraph (e) containing information the disclosure of which is prohibited by the organisation, organ, institution or body.

• (3) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record, existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would prejudice a matter referred to in that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

25. Conclusiveness of certain decisions pursuant to sections 23 and 24.

25.—(1) (a) Subject to paragraph (b), where—

• (i) a Minister of the Government or the head of a public body (other than a Department of State or the Office of the Tánaiste) in relation to which functions stand conferred on that Minister of the Government—

• (I) pursuant to section 8, refuses to grant a request to him or her under section 7, or

• (II) pursuant to section 14, upholds a decision, or decides, to refuse to grant a request under section 7,

because he or she is satisfied that, by virtue of section 23 or 24, the record concerned is an exempt record, and

• (ii) the Minister of the Government is satisfied, that the record is of sufficient sensitivity or seriousness to justify his or her doing so,

the Minister of the Government may declare, in a certificate issued by him or her (“a certificate”), that the record is, by virtue of section 23 or 24, an exempt record.

• (b) A Minister of the Government shall not issue a certificate in respect of a record the subject of a decision referred to in clause (I) or (II) of paragraph (a) (i) by the head of a public body (other than a Department of State or the Office of the Tánaiste) unless he or she has been requested by the head, in writing or such other form as may be determined, to do so.

• (2) Where an application is made to a head for the review under section 14 of a decision to refuse to grant a request under section 7, a certificate shall not be issued in respect of the record concerned more than 3 weeks after the date of the receipt of the application by that head.

• (3) While a certificate is in force—

• (a) the record to which it relates shall, subject to the provisions of this Act, be deemed conclusively to be an exempt record, and

• (b) an application for a review under section 14 or 34, as may be appropriate, of the decision concerned under section 8 or 14 in relation to the record shall not lie.

• (4) A document purporting to be a certificate and to be signed by a Minister of the Government shall, unless the contrary is proved, be deemed to be a certificate of that Minister of the Government and to be in force and shall be received in any proceedings in a court or under section 14 or 34 without further proof.

• (5) A certificate shall specify—

• (a) the request under section 7 concerned,

• (b) the provisions of section 23 or 24, as may be appropriate, by reference to which the record to which it relates is an exempt record,

• (c) the date on which the certificate is signed by the Minister of the Government concerned and the date of its expiration, and

• (d) the name of the requester,

and shall be signed by the Minister of the Government by whom it is issued.

• (6) Upon the issue of a certificate, the Minister of the Government concerned shall cause—

• (a) a copy of the certificate to be furnished forthwith to the requester concerned, and

• (b) a copy of the certificate and a statement in writing of the reasons why the record to which it relates is an exempt record and of the matter by reference to which the Minister of the Government is satisfied that subsection (1) (a) (ii) applies to the record to be furnished forthwith to the Taoiseach and such other Ministers of the Government as may be prescribed.

• (7)
• F51[(a) Subject to paragraph (b), the Taoiseach, jointly with any other Ministers of the Government standing prescribed under subsection (6), shall as soon as may be after the expiration of each period of 12 months (or such other period not exceeding 24 months in length as may be prescribed) beginning with the period from the commencement of section 20(1) of the Freedom of Information (Amendment) Act 2003 review the operation of subsection (1) during that period.]

• (b) A Minister of the Government shall not take part in a review under this subsection in so far as it relates to a certificate issued by him or her but may make submissions to the other Ministers of the Government concerned in relation to the part of such a review in which he or she is precluded as aforesaid from taking part.

• (c) If, following a review under this subsection, the Ministers of the Government concerned are not satisfied—

• (i) that a record to which the certificate concerned relates is an exempt record, or

• (ii) that any of the information contained in the record is of sufficient sensitivity or seriousness to justify the continuance in force of the certificate,

they shall request the Minister of the Government concerned to revoke the certificate.

• (d) A Minister of the Government may, for the purposes of a review by that Minister of the Government under this subsection, examine all relevant records held by or on behalf of or under the control of another head.

• (8)
• (a) The Taoiseach may, at any time, review the operation of subsection (1) in so far as it relates to any other Minister of the Government or the issue of a particular certificate by another Minister of the Government.

• (b) Paragraphs (c) and (d) of subsection (7) shall have effect in relation to a review under this subsection with the necessary modifications.

• (9) A Minister of the Government may, and shall, if so requested pursuant to subsection (7) (c), by instrument signed by him or her, revoke a certificate issued by that Minister of the Government and, if he or she does so, he or she shall cause the requester concerned to be furnished forthwith with a copy of the instrument.

• (10) If a certificate or the decision concerned under section 8 or 14 in relation to a record to which a certificate relates is annulled by the High Court under section 42, the certificate shall thereupon expire.

• (11) A Minister of the Government shall, in each year after the year in which this section comes into operation, cause to be prepared and furnished to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year and the provisions of section 23 or 24, as may be appropriate, by virtue of which, pursuant to section 8, the grant of the request under section 7 concerned was refused, or, pursuant to section 14, a decision to uphold a decision to refuse to grant, the request under section 7 concerned was made.

• (12) Where a certificate is revoked or has expired and another certificate is not in force in relation to the record concerned or the certificate is annulled under section 42, the requester concerned may make an application for a review under section 14 or 34, as may be appropriate, of the decision concerned under section 8 or 14 not later than 28 days after the date of the revocation, expiration or annulment, as the case may be.

• (13) Subject to subsections (9) and (10), a certificate shall remain in force for a period of 2 years from the date on which it is signed by the Minister of the Government concerned and shall then expire, but a Minister of the Government may, at any time, issue a certificate under this section in respect of a record in relation to which a certificate had previously been issued unless pursuant to—

• (a) a decision (which has not been reversed) following a review under section 14 or 34, or

• (b) a decision under section 42 on an appeal to the High Court,

the record is not an exempt record.

26. Information obtained in confidence.

26.—(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if—

• (a) the record concerned contains information F52[given to a public body] in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

• (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

• (2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services.

• (3) Subject to section 29, subsection (1) (a) shall 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 under section 7 concerned.

• F53[(4) Where—

• (a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (3) do not apply or would not, if the record existed, apply, and

• (b) in the opinion of the head concerned, the disclosure of the existence or non-existence of the record would have an effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.]

27. Commercially sensitive information.

27.—(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains—

• (a) trade secrets of a person other than the requester concerned,

• (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.

• (2) A head shall grant a request under section 7 to which subsection (1) relates if—

• (a) the person to whom the record concerned relates consents, in writing or in such other form as may be determined, to access to the record being granted to the requester concerned,

• (b) information of the same kind as that contained in the record in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public,

• (c) the record relates only to the requester,

• (d) information contained in the record was given to the public body concerned by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

• (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the F54[environment,]

F55[but, in a case falling within paragraph (a) or (c), the head shall ensure that, before granting the request, the identity of the requester or, as the case may be, the consent of the person is established to the satisfaction of the head.]

• (3) Subject to section 29, 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 under section 7 concerned.

• F55[(4) Where—

• (a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (3) do not apply or would not, if the record existed, apply, and

• (b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have an effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.]

28. Personal information.

28.—(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).

• (2) Subsection (1) does not apply if—

• (a) subject to subsection (3), the information concerned relates to the requester concerned,

• (b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

• (c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

• (d) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

• (e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,

but, in a case falling within paragraph (a) or (b), the head concerned shall ensure that, before the request under section 7 concerned is granted, the identity of the requester or, as the case may be, the consent of the individual is established to the satisfaction of the head.

• (3) Where a request under section 7 relates to—

• (a) a record of a medical or psychiatric nature relating to the requester concerned, or

• (b) a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request.

• (4) Where, pursuant to subsection (3), a head refuses to grant a request under section 7—

• (a) there shall be included in the notice under section 8 (1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 8 (3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and

• (b) if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 8 (3).

• (5) Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance—

• (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

• (b) the grant of the request would benefit the individual aforesaid,

the head may, subject to section 29, grant the request.

• F56[(5A) Where—

• (a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (5) do not apply or would not, if the record existed, apply, and

• (b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

• (5B) Notwithstanding paragraph (a) of subsection (2), a head shall, subject to paragraphs (b) to (e) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.]

• (6) Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where—

• (a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual, or

• (b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.

• (7) In this section “health professional” means a medical practitioner, within the meaning of the Medical Practitioners Act, 1978, a registered dentist, within the meaning of the Dentists Act, 1985, or a member of any other class of health worker or social worker standing prescribed, after consultation with such (if any) other Ministers of the Government as the Minister considers appropriate.

29. Procedure in relation to certain requests under section 7 to which section 26, 27 or 28 applies.

29.—(1) In this section “a request to which this section applies” means a request under section 7 to which section 26 (3) or 27 (3) applies or to which section 28 (5) applies and which, apart from this section, would fall to be granted.

• (2) Subject to subsection (5), before deciding whether to grant a request to which this section applies, a head shall, not later than 2 weeks after the receipt of the request—

• (a) if the request is one to which section 26 (3) applies, cause the person who gave the information concerned to the public body concerned and, if the head considers it appropriate, the person to whom the information relates, or

• (b) if the request is one to which section 27 (3) or 28 (5) applies, cause the person to whom the information relates,

to be notified, in writing or in such other form as may be determined—

• (i) of the request and that, apart from this section, it falls, in the public interest, to be granted,

• (ii) that the person may, not later than 3 weeks after the receipt of the notification, make submissions to the head in relation to the request, and

• (iii) that the head will consider any such submissions before deciding whether to grant or refuse to grant the request.

• F57[(2A)
• (a) The head may, as respects a request to which this section applies received by him or her, extend the period specified in subsection (2) for compliance with that subsection by such period as he or she considers necessary but not exceeding a period of 2 weeks if in the opinion of the head—

• (i) the request relates to such number of records, or

• (ii) the number of persons required by subsection (2) to be notified of the matters referred to in paragraphs (i) to (ii) of that subsection is such,

that compliance with that subsection within the period specified therein is not reasonably possible.

• (b) Where a period is extended under this subsection, the head concerned shall cause notice in writing, or in such other form as may be determined, to be given to the requester concerned, before the expiration of the period, of the extension and the period thereof and reasons therefor.

• (c) The reference in subsection (2) to 2 weeks shall be construed in accordance with any extension under this subsection of that period.]

• (3) A person who receives a notification under subsection (2) may, not later than 3 weeks after such receipt, make submissions to the head concerned in relation to the request to which this section applies referred to in the notification and the head—

• (a) shall consider any such submissions so made before deciding whether to grant the request,

• (b) shall cause the person to be notified in writing or in such other form as may be determined of the decision, and

• (c) if the decision is to grant the request, shall cause to be included in the notification particulars of the right of review of the decision under section 34, the procedure governing the exercise of that right and the time limit governing such exercise.

• (4) Subject to subsection (5), a head shall make a decision whether to grant a request to which this section applies, and shall comply with subsection (3) in relation thereto, not later than 2 weeks after—

• (a) the expiration of the time specified in subsection (3), or

• (b) the receipt of submissions under that subsection in relation to the request from those concerned,

whichever is the earlier, and section 8 (1) shall be construed and shall have effect accordingly.

• (5) If, in relation to a request to which this section applies, the head concerned is unable to comply with subsection (2), having taken all reasonable steps to do so, the head shall, if the Commissioner consents to the non-compliance, make a decision whether to grant or refuse the request not later than 7 weeks after the receipt of the request and in such a case section 8 (1) shall be construed and shall have effect accordingly.

• (6) If, in relation to a request to which this section applies, the Commissioner does not consent, pursuant to subsection (5), to non-compliance with subsection (2), he or she shall direct the head concerned to take specified steps within a specified period for the purpose of complying with subsection (2) and if, having taken those steps within that period or such further period as the Commissioner may specify, the head is unable to comply with that subsection, he or she shall, as soon as may be, make a decision whether to grant or refuse the request.

30. Research and natural resources.

30.—(1) A head may refuse to grant a request under section 7 if, in the opinion of the head—

• (a) the record concerned contains information in relation to research being or to be carried out by or on behalf of a public body and disclosure of the information or its disclosure before the completion of the research would be likely to expose the body, any person who is or will be carrying out the research on behalf of the body or the subject matter of the research to serious disadvantage, or

• (b) disclosure of information contained in the record could reasonably be expected to prejudice the well-being of a cultural, heritage or natural resource or a species, or the habitat of a species, of flora or fauna.

• (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 under section 7 concerned.

31. Financial and economic interests of the State and public bodies.

31.—(1) A head may refuse to grant a request under section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head—

• (a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy,

• (b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or

• (c) access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

• (2) This subsection applies to a record relating to—

• (a) rates of exchange or the currency of the State,

• (b) taxes, revenue duties or other sources of income for the State, a local authority or any other public body,

• (c) interest rates,

• (d) borrowing by or on behalf of the State or a public body,

• (e) the regulation or supervision by or on behalf of the State or a public body of the business of banking or insurance or the lending of money or of other financial business or of institutions or other persons carrying on any of the businesses aforesaid,

• (f) dealings in securities or foreign currency,

• (g) the regulation or control by or on behalf of the State or a public body of wages, salaries or prices,

• (h) proposals in relation to expenditure by or on behalf of the State or a public body including the control, restriction or prohibition of any such expenditure,

• (i) property held by or on behalf of the State or a public body and transactions or proposed or contemplated transactions involving such property,

• (j) foreign investment in enterprises in the State,

• (k) industrial development in the State,

• (l) trade between persons in the State and persons outside the State,

• (m) trade secrets or financial, commercial, industrial, scientific or technical information belonging to the State or a public body and is of substantial value or is reasonably likely to be of substantial value,

• (n) information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body in relation to activities carried on by it on a commercial basis, or

• (o) the economic or financial circumstances of a public body.

• (3) 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 under section 7 concerned.

32. Enactments relating to non-disclosure of records.

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 non-disclosure 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 non-disclosure 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 non-disclosure 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.

PART IV The Information Commissioner

33. Establishment of office of Information Commissioner.

33.—(1) There is hereby established the office of Information Commissioner and the holder of the office shall be known as the Information Commissioner.

• (2) The Commissioner shall be independent in the performance of his or her functions.

• (3) The appointment of a person to be the Commissioner shall be made by the President on the advice of the Government following a resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.

• (4)
• (a) Subject to paragraph (b), the provisions of the Second Schedule shall have effect in relation to the Commissioner.

• F58[(b) Paragraph 5 of the Second Schedule shall not have effect in relation to remuneration in a case where the person who holds the office of Commissioner also holds the office of Ombudsman.]

• (5) Section 2 (6) of the Ombudsman Act, 1980 shall not apply to a person who holds the office of Ombudsman and also holds the office of Commissioner.

34. Review by Commissioner of decisions.

34.—(1) This section applies to—

• (a) a decision under section 14, other than a decision referred to in paragraph (c),

• (b) a decision specified in paragraph (a), (b), (c), (d), (e) or (f) of section 14 (1),

• (c) a decision under section 14, or a decision under section 47, that a fee or deposit exceeding £10 or such other amount (if any) as may stand prescribed for the time being should be charged under section 47,

• (d) a decision under section 9 to extend the time for the consideration of a request under section 7,

• F59[(dd) a decision to refuse to grant a request under section 7 on the ground that, by virtue of section 46, this Act does not apply to the record concerned,]

• (e) a decision under section 11 to defer the giving of access to a record falling within paragraph (b) or (c) of subsection (1) of that section, and

• (f) a decision on a request to which section 29 applies,

but excluding—

• (i) a decision aforesaid made by the Commissioner in respect of a record held by the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Ombudsman, and

• (ii) a decision referred to in paragraph (b), and a decision under section 47 referred to in paragraph (c), made by a person to whom the function concerned stood delegated under section 4 at the time of the making of the decision.

• (2) Subject to the provisions of this Act, the Commissioner may, on application to him or her in that behalf, in writing or in such other form as may be determined, by a relevant person—

• (a) review a decision to which this section applies, and

• (b) following the review, may, as he or she considers appropriate—

• (i) affirm or vary the decision, or

• (ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper,

in accordance with this Act.

• F60[(3) A decision under subsection (2) shall be made as soon as may be and, in so far as practicable, not later than 4 months after the receipt by the Commissioner of the application for the review concerned.]

• (4) An application under subsection (2) shall be made—

• (a) if it relates to a decision specified in paragraph (d) or (f) of subsection (1), not later than 2 weeks after the notification of the decision to the relevant person concerned F59[or, in a case in which the Commissioner is of opinion that there are reasonable grounds for extending that period, the expiration of an additional period of such length as he or she may determine], and

• (b) if it relates to any other decision specified in that subsection, not later than 6 months after the notification of the decision to the relevant person concerned or, in a case in which the Commissioner is of opinion that there are reasonable grounds for extending that period, the expiration of such longer period as he or she may determine.

• (5) A person who makes an application under subsection (2) may, by notice in writing given to the Commissioner, at any time before a notice under subsection (10) in relation to the application is given to the person, withdraw the application, and the Commissioner shall cause a copy of any notice given to him or her under this subsection to be given to the relevant person, or the head, concerned, as may be appropriate, and any other person to whom, in the opinion of the Commissioner, it should be given.

• (6) As soon as may be after the receipt by the Commissioner of an application under subsection (2), the Commissioner shall cause a copy of the application to be given to the head concerned, and, as may be appropriate, to the relevant person concerned and, if the Commissioner proposes to review the decision concerned, he or she shall cause the head and the relevant person and any other person who, in the opinion of the Commissioner, should be notified of the proposal to be so notified and, thereupon, the head shall give to the Commissioner particulars, in writing or in such other form as may be determined, of any persons whom he or she has or, in the case of a refusal to grant a request to which section 29 applies, would, if he or she had intended to grant the request under section 7 concerned, have notified of the request.

• (7) Where an application under subsection (2) is made, the Commissioner may at any time endeavour to effect a settlement between the parties concerned of the matter concerned and may for that purpose, notwithstanding subsection (3), suspend, for such period as may be agreed with the parties concerned and, if appropriate, discontinue, the review concerned.

• (8) In relation to a proposed review under this section, the head, and the relevant person concerned and any other person who is notified under subsection (6) of the review may make submissions (as the Commissioner may determine, in writing or orally or in such other form as may be determined) to the Commissioner in relation to any matter relevant to the review and the Commissioner shall take any such submissions into account for the purposes of the review.

• (9)
• (a) The Commissioner may refuse to grant an application under subsection (2) or discontinue a review under this section if he or she is or becomes of the opinion that—

• (i) the application aforesaid or the application to which the review relates (“the application”) is frivolous or vexatious,

• (ii) the application does not relate to a decision specified in subsection (1), or

• (iii) the matter to which the application relates is, has been or will be, the subject of another review under this section.

• (b) In determining whether to refuse to grant an application under subsection (2) or to discontinue a review under this section, the Commissioner shall, subject to the provisions of this Act, act in accordance with his or her own discretion.

• (10) Notice, in writing or in such other form as may be determined, of a decision under subsection (2) (b), or of a refusal or discontinuation under subsection (9), and the reasons therefor, shall be given by the Commissioner to—

• (a) the head concerned,

• (b) the relevant person concerned, and

• (c) any other person to whom, in the opinion of the Commissioner, such notice should be given.

• (11)
• (a) The notice referred to in subsection (10) shall be given as soon as may be after the decision, refusal or discontinuation concerned and, if it relates to a decision under subsection (2), in so far as practicable, within the period specified in subsection (3).

• (b) The report of the Commissioner for any year under section 40 shall specify the number of cases (if any) in that year in which a notice referred to in subsection (10) in relation to a decision under subsection (2) (b) was not given to a person specified in subsection (10) within the appropriate period specified in paragraph (a).

• (12) In a review under this section—

• (a) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified, and

• (b) a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

• (13) A decision of the Commissioner following a review under this section shall, where appropriate, specify the period within which effect shall be given to the decision and, in fixing such a period, the Commissioner shall have regard to the desirability, subject to section 44, of giving effect to such a decision as soon as may be after compliance in relation thereto with subsection (11).

• (14) Subject to the provisions of this Act, a decision under subsection (2) shall—

• (a) in so far as it is inconsistent with the decision to which this section applies concerned have effect in lieu thereof, and

• (b) be binding on the parties concerned.

• (15) In this section “relevant person”, in relation to a decision specified in subsection (1), means—

• (a) the requester concerned and, if the decision is in respect of a request to which section 29 relates, a person to whom subsection (2) of that section applies, or

• (b) if the decision is under section 17 or 18, the person who made the application concerned under that section.

35. Requests for further information by Commissioner.

35.—(1) Where—

• (a) an application for the review by the Commissioner of—

• (i) a decision to refuse to grant a request under section 7, or

• (ii) a decision under section 14 in relation to a decision referred to in subparagraph (i),

is made under section 34, and

• (b) the Commissioner considers that the statement of the reasons for the decision referred to in paragraph (a) (i) in the notice under subsection (1) of section 8 or of the findings or particulars referred to in subsection (2) (d) (ii) of that section in relation to the matter is not adequate,

the Commissioner shall direct the head concerned to furnish to the requester concerned and the Commissioner a statement, in writing or such other form as may be determined, containing any further information in relation to those matters that is in the power or control of the head.

• (2) A head shall comply with a direction under this section as soon as may be, but not later than 3 weeks, after its receipt.

36. Review of operation of Act and investigations by Commissioner.

36.—(1) The Commissioner shall keep the operation of this Act under review and may, subject to subsection (2), carry out an investigation at any time into the practices and procedures adopted by public bodies generally or any particular public body or public bodies for the purposes of compliance with—

• (a) the provisions of this Act generally,

• (b) any particular provisions of this Act.

• (2) The Commissioner shall carry out an investigation under subsection (1) (a) in relation to public bodies generally not later than 3 years after the commencement of this Act.

• (3) The Commissioner may at any time carry out an investigation into the practices and procedures adopted by public bodies or any particular public body or public bodies for the purposes of enabling persons to exercise the rights conferred by this Act and facilitating such exercise.

• (4) The Commissioner may at any time prepare a report, in writing or such other form as may be determined—

• (a) of his or her findings and conclusions resulting from the performance of any function under subsection (1) (2) or (3), or

• (b) on any matter relating to or arising out of the performance of such a function.

• (5) The Commissioner shall, if he or she considers it appropriate to do so, cause a copy of a report under this section to be furnished to the Minister and to each public body concerned and shall cause a copy of the report to be appended to the report under section 40 (1) prepared next after the preparation of the first-mentioned report.

37. Powers of Commissioner.

37.—(1) The Commissioner may, for the purposes of a review under section 34 or an investigation under section 36—

• (a) require any person who, in the opinion of the Commissioner, is in possession of information, or has a record in his or her power or control, that, in the opinion of the Commissioner, is relevant to the purposes aforesaid to furnish to the Commissioner any such information or record that is in his or her possession or, as the case may be, power or control and, where appropriate, require the person to attend before him or her for that purpose, and

• (b) examine and take copies in any form of, or of extracts from any record that, in the opinion of the Commissioner, is relevant to the review or investigation and for those purposes take possession of any such record, remove it from the premises and retain it in his or her possession for a reasonable period.

• (2) The Commissioner may for the purposes of such a review or investigation as aforesaid enter any premises occupied by a public body and there—

• (a) require any person found on the premises to furnish him or her with such information in the possession of the person as he or she may reasonably require for the purposes aforesaid and to make available to him or her any record in his or her power or control that, in the opinion of the Commissioner, is relevant to those purposes, and

• (b) examine and take copies of, or of extracts from, any record made available to him or her as aforesaid or found on the premises.

• (3) Subject to subsection (4), no enactment or rule of law prohibiting or restricting the disclosure or communication of information shall preclude a person from furnishing to the Commissioner any such information or record, as aforesaid.

• (4) A person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as a witness in a court.

• (5) The Commissioner may, if he or she thinks fit, pay to any person who, for the purposes of a review under section 34, or an investigation under section 36, attends before the Commissioner or furnishes information or a record or other thing to him or her—

• (a) sums in respect of travelling and subsistence expenses properly incurred by the person, and

• (b) allowances by way of compensation for loss of his or her time,

of such amount as may be determined by the Minister.

• (6) Subject to the provisions of this Act, the procedure for conducting a review under section 34 or an investigation under section 36 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner.

• (7) A person who fails or refuses to comply with a requirement under this section or who hinders or obstructs the Commissioner in the performance of his or her functions under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or both.

• (8) This section does not apply to a record in respect of which a certificate under section 25 is in force.

38. Commissioner to encourage publication of information by public bodies.

38.—The Commissioner shall foster and encourage the publication by public bodies, in addition to the publications provided for by sections 15 and 16, of information of relevance or interest to the general public in relation to their activities and functions generally.

39. Publication of commentaries by Commissioner on practical application, etc., of Act.

39.—The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews, and decisions following reviews, of such holders under section 34.

40. Reports of Commissioner.

40.—(1) The Commissioner shall, in each year after the year in which this section comes into operation—

• (a) prepare a report in relation to his or her activities under this Act in the previous year, and

• (b) append to the report a copy of any report furnished to him or her under section 25 (11),

• (c) cause copies of the report and of any copy referred to in paragraph (b) to be laid before each House of the Oireachtas.

• (2) The Commissioner may, if he or she considers it appropriate to do so in the public interest or in the interests of any person, prepare and publish a report in relation to any investigation, or review carried out or other function performed, by him or her under this Act or any matter relating to or arising in the course of such an investigation, review or performance.

PART V Miscellaneous

41. Decisions deemed to have been made in certain cases.

41.—(1) Where notice of a decision under section 8 or 17 is not given to the requester concerned or to the person who made the application concerned under section 17 before the expiration of the period specified for that purpose in section 8 or 17, as the case may be, a decision refusing to grant the request under section 7 or the application under section 17 shall be deemed for the purposes of this Act to have been made upon such expiration and to have been made by a person to whom the relevant functions stood delegated under section 4.

• (2) Where notice of a decision under section 14 is not given to the person who made the application concerned under that section before the expiration of the period specified in subsection (4) thereof, a decision affirming the decision to which the application relates shall be deemed for the purposes of this Act to have been made upon such expiration.

• (3) Where a statement under subsection (1), or notice of a decision under subsection (4), of section 18 is not given to the person who made the application under the said subsection (1) concerned before the expiration of the period specified for that purpose in the said subsection (1) or (4), as the case may be, a decision refusing to grant the application shall be deemed for the purposes of this Act to have been made upon such expiration and to have been made by a person to whom the relevant functions stood delegated under section 4.

42. Appeal to High Court.

42.—(1) A party to a review under section 34 or any other person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision.

• (2) The requester concerned or any other person affected by—

• (a) the issue of a certificate under section 25,

• (b) a decision, pursuant to section 8, to refuse to grant a request under section 7 in relation to a record the subject of such a certificate, or

• (c) a decision, pursuant to section 14, to refuse to grant, or to uphold a decision to refuse to grant, such a request,

may appeal to the High Court on a point of law against such issue or from such decision.

• (3) A person may appeal to the High Court from—

• (a) a decision under section 14, or

• (b) a decision specified in paragraph (a), (b), (c), (d), (e), (f) or (g) of subsection (1) of that section (other than such a decision made by a person to whom the function stood delegated under section 4 at the time of the making of the decision),

made by the Commissioner in respect of a record held by the Office of the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Office of the Ombudsman.

• F61[(4) An appeal under subsection (1), (2) or (3) shall be initiated not later than 8 weeks after notice of the decision concerned was given to the person bringing the appeal.]

• (5) The Commissioner may refer any question of law arising in a review under section 34 to the High Court for determination, and the Commissioner may postpone the making of a decision following the review until such time as he or she considers convenient after the determination of the High Court.