Yes, we have covered the principle and have agreed with her on that previously. Item 7 is the Competition Act 2002, which entitles a person injured by disclosure of information obtained by the Competition Authority pursuant to its powers to sue the person who made the disclosure. Again she says the protection under the FOI Act is adequate and makes the same point. We have previously accepted the principle of her argument. On item 8 we are agreeing with the Information Commissioner. Item 8 is the Companies (Auditing and Accounting) Act, which imposes a statutory duty of confidentiality on the director, management, staff and advisers of the supervisory authority and recognises the highly sensitive nature of the information the authority holds. Again, the Information Commissioner says she is concerned about the absolute nature of this provision, which is designed to support the auditing standards authority in being capable of offering a guarantee of confidentiality to complainants. Otherwise the view is that complainants will not come forward, despite the protection of the FOI Act. She is saying she is afraid complaints may not be made to the Irish Auditing and Accounting Supervisory Authority if people felt their details could be released under FOI. She is saying she believes she is able to adjudicate that under FOI and the Department should not have absolute power on it. We will agree with the Information Commissioner's view.
Item 9 is the Personal Injuries Assessment Board Act, which prohibits the disclosure of information obtained by a member of the board, staff, committee, adviser or consultant. Members of a board and staff already have an obligation not to disclose information by virtue of the legislation that refers to the Personal Injuries Assessment Board. Her view is that it should be FOI-accessible and she can assess that. In that department we generally agree with her.
The Radiological Protection Act 1991 has a provision that, with certain stated exceptions, prohibits the disclosure of information. The Department of Environment, Heritage and Local Government wants to exclude it but the Information Commissioner disagrees. The Minister's response is to include section 36(1)(d) and exclude section 36(1)(a) to (c). I am generally reading from the Information Commissioner’s response to the Minister’s document but I will refer to the Minister’s response because the Information Commissioner did not refer to it on that occasion. We are dealing with section 36 of the Radiological Protection Act. I will defer consideration of it, as I cannot put my hand on it. We might defer three or four items to the end of the meeting when I can put my hand more exactly on the Minister’s response.
We will move on to section 14 of the Electoral Act, which proposes preventing information on proposals for a constituency revision or any other information on the business of the commission being made public without the permission of the commission. We will disagree with the Department on that. We have nothing to fear from the information on boundary commissions being made public. Is that agreed? Agreed. We are saying the Electoral Act should come under the FOI Act.
The next item is genetically modified organisms. The following is the Information Commissioner's response:
The "confidentiality" provisions . . . provide that notifiers of information may make a request to the Environmental Protection Agency, EPA, that certain information would be treated as confidential for purposes of article 7 . . . of the European Communities Act 1972 (Access to Information on the Environment) Regulations, 1998. Any such request must be accompanied by verifiable justification. Given that the two non-disclosure provisions of the European Communities Act 1972 (Access to Information on the Environment) Regulations 1998 contain qualifying conditions which closely resemble a number of the stated exemptions of the FOI Act, it is arguable whether either "confidentiality" provision could, or should, be described as a non-disclosure provision . . . Effectively, these provisions are the conduit for the delivery of the non-disclosure provisions of the European Communities Act 1972 (Access to Information on the Environment) Regulations 1998 . . . I also note the obligation on the EPA to consider the public interest in the decision-making process on whether or not to accede to any request for confidentiality. On balance, I believe these provisions should be subject to the oversight of the FOI Act.
So she says the interest of the public good should come into this as well as the commercial interest of those who provide information. Will we agree with her on that? Agreed.
The next item is genetically modified organisms and deliberate release regulations. The articles affect mandatory grounds. This is the same principle. We will accept the Information Commissioner's opinion. We will return to one item when I have more information.
The next item is the Department of Finance's Ethics in Public Office Act, section 35. This is a provision which, with certain stated exceptions, prohibits the disclosure of information. Those exceptions include disclosure pursuant to an order of a court and disclosure of information in the public interest by a Minister of the Government. They also include the level of disclosure of information contained in the statement of interest by a person to whom such a statement is provided, where that person considers a conflict may exist between an interest specified or an interest which has not been disclosed and the public interest. A further exemption relates to disclosure of information by a person, whether in the performance of his or her official functions or in the public interest. Such disclosure could be made to a Minister of a Government, a Secretary General of a Department, a committee of the Houses of the Oireachtas or to the Standards in Public Office Commission or a person or public body which is determined by the Minister for Finance to be the relevant authority for the occupiers of the designated positions of that body.
Finally, where a person has been the subject of an investigation under the ethics Acts and the ensuing report does not contain the determination that a contravention of the ethics Acts has occurred, which means it would not be laid before the Houses of the Oireachtas, the information contained in the report may be disclosed. Given the safeguards of the FOI Act and in light of the level of disclosure already provided for, my view is that it should be included in the Third Schedule.
