I move amendment No. 18:
In page 14, lines 2 to 10, to delete subsection (2) and substitute the following:
"(2) Notwithstanding subsection (1), information referred to in that subsection which, in the opinion of the Director, may be required-
(a) for a purpose or reason specified in subsection (1) of section 21 of the Act of 1990,
(b) for the performance by a competent authority (within the meaning of that section 21) of a function or functions of the authority, or
(c) for the performance by the Director of a function or functions of the Director,
may be disclosed by or under the authority of the Director to the extent that, in the opinion of the Director, is necessary for that purpose.".
This amendment provides for the replacement of section 17(2). Section 17 provides for the security of information obtained by the Director of Corporate Enforcement and his or her staff in the course of their official duties. It imposes an obligation of confidentiality on them in respect of such information. Section 17(2) provides for circumstances in which information may be disclosed by the director, notwithstanding the general obligation of confidentiality in respect of such information. The proposed amendment does not substantively alter the intent or effect of section 17(2) but is advanced on the basis that the existing wording of the subsection may prove problematic to the director if he or she wishes to disclose information for prescribed purposes.
As drafted, section 17(2) requires the director to be satisfied that the information is necessarily and validly required for a particular purpose before he or she can disclose it. Even then, the disclosure may only be to the extent necessary to satisfy that requirement. This represents a very severe test and may prevent the director from disclosing information in circumstances where he or she believes such disclosure is warranted.
For example, if the director proposed to disclose information to the Revenue Commissioners on the basis that it might assist in the assessment of a person's liability in respect of tax, the director would first have to be satisfied that the disclosure was necessarily and validly required for that purpose. This would require the director to be satisfied that the assessment of the person's tax liability could not be completed without the information in question, something he or she would probably not be in a position to do.
The amendment provides that the decision to disclose information may be made where the disclosure may, in the opinion of the director, be required for a particular purpose. Where that decision is taken, disclosure may be made to the extent that, in the opinion of the director, it is required. The director will, therefore, be permitted to disclose otherwise confidential information if he or she believes it may be required for a particular purpose rather than having to be satisfied that it is required. These amendments will serve to ensure that, where the director obtains information that may be helpful to another statutory or non-statutory regulatory authority, the director will not be constrained from making the information in question available to that authority. Appropriate exchange of information with other regulatory authorities, which we discussed earlier in the context of Deputy Rabbitte's amendment, will be an integral part of the effective functioning of the office of Director of Corporate Enforcement.
In addition to the foregoing, minor textual amendments are proposed in respect of section 17(2)(a) and (b). These amendments are designed to remove any potential confusion as to the meaning of the publicised text. In section 17(2)(a) the reference to the provisions set out in section 21(1) of the 1990 Act was changed to a reference to the purposes or reasons specified in that section. This is to clarify that the reference in paragraph (a) is to all the grounds for disclosure of information specified in section 21(1) and not only to the legislative provisions listed in that section
In section 17(2)(b) the reference to information being required by a competent authority as defined in section 21(3) is to be changed to a reference to information which may be required for the performance by a competent authority of a function or functions of that authority. This is intended to clarify and be more specific as to the basis on which information may be disclosed by the Director of Corporate Enforcement to a competent authority.