We do not intend to amend section 21 of the Companies Act, 1990, to permit the Information Commissioner to disclose confidential company information gathered under sections 19 or 20 of the Act. This matter was discussed at length by the House yesterday during the course of the Report Stage debate on the Companies (Amendment) (No. 2) Bill, 1999. As I explained then, our experience with the operation of section 19 examinations is that a wide prohibition on disclosure of information, relating to company books and documents is necessary in order that the company and its officers can be assured that the information gathered will have a high degree of protection from public disclosure.
If that assurance cannot be offered by our Department, the company concerned may well decide to resist the conduct of the examination either through the courts or otherwise. In particular, if a public interest test were to determine whether information were to be disclosed, every company, the subject of examination, would believe or would choose to argue that publication of its affairs would be the inevitable outcome of being subject to a section 19 examination.
Such a lack of co-operation by companies and their officers would entirely defeat the process of preliminary examination envisaged in section 19. It would also be counterproductive to the public interest of seeking to uncover corporate malpractice and of applying, in due course, the rigours of the law to those found to be in breach.
It is already our experience that the secrecy provision in section 21 is not enough to avoid recourse to the courts. Two companies have already gone to great lengths to question, in recent High Court proceedings, our bona fides in regard to compliance with the statutory duties of confidentiality imposed on us by this section. They are also seeking to argue before the Supreme Court that the existing ministerial powers, tight and all as they are, are unconstitutional, because they fail, inter alia, to have proper regard to a company's right to confidentiality and/or privacy. Our Supreme Court defence, which will uphold the value of the confidential preliminary examination would be damaged by accepting any amendment which would permit public disclosure of information relating to a company's affairs.