Exemptions

Law Enforcement and Public Safety

Freedom of information legislation contains significant exemptions in respect of law enforcement and public safety issues.  A head may refuse a request for access to a record if it could be expected to

• prejudice the prevention, detection and investigation of offences, apprehension or prosecution of offenders or the effectiveness of lawful methods, systems and plans and procedures for the purpose of those matters.
• prejudice or impair the enforcement of or compliance with or administration of any law,
• prejudice or impair lawful methods, systems, plans or procedures for ensuring the public safety and security of persons and property,
• prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal,
• prejudice or impair the security of a penal institution, Central Mental Hospital,
• prejudice or impair the security of a building or other structure, vehicle, ship, boat or aircraft,
• prejudice the secure system of communications, internal or external, of the Revenue Commissioners, Garda Síochána or the Defence Force,
• 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 and administration of civil law or any other source of such information given in confidence,
• facilitate the commission of an offence.

Where the head is satisfied that the disclosure of the existence or nonexistence of a record would have any of the above effects, he or she shall refuse to grant a request and shall not disclose whether or not any such record exists.

The above provisions do not apply to records

• that disclose that an investigation for the purpose of enforcement of any law or anything done in the course of an investigation for the purpose of prevention or detection of offences or apprehension or prosecution of offenders is not authorised by law or contravenes law or
• contains information about the performance of the functions of a public body whose functions include enforcement of the law, or ensuring the safety of the public including the effectiveness and efficiency of such performance or the merits or otherwise or the success or otherwise of the 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 such programmes, scheme or policy where in the opinion of the head, the public interest would, on balance be better served by granting them than by refusing to grant the request concerned.

There are separate exclusions of confidential information obtained in connection with enforcing the criminal law and civil law.  There are similar provisions that apply in respect of the criminal law.

Civil Law Basis

Information may be exempted on certain grounds in the case of civil law enforcement.  The conditions require that the information be given in confidence relating to the enforcement or administration of the civil law (or under separate provisions, the criminal law). The granting of the request must be reasonably expected to reveal or lead to the revelation of the identity of the person who has given the information or reveals or lead to the revelation of the identity of any other source of the information.

The information may be given expressly or implicitly in confidence.  Different views are taken as to whether the information given is automatically presumed to be in confidence.

There is a limited public interest test in this context.  It is designed to ensure that law enforcement agencies cannot use the exemption to hide wrongdoing or inefficiency.  Such records may incidentally reveal the commission of civil wrongs and crimes.

State Interests and Security

A head may refuse to grant a request in relation to a record including in particular, but not limited to those mentioned below if, in the opinion of the head, access to it could be reasonably be expected to adversely affect the security or defence of the State, international relations of the State or matters relating to Northern Ireland.

In particular, the exemption applies to the following:

• information that was obtained or prepared for the purpose of intelligence in respect of the security or the defence of the State, or that relates to the tactics, strategy or operation of the Defence Forces in or outside the State, or the detection, prevention or suppression of activities tending to undermine public order or the authority of the State;
• contains information passing between a Minister of the government on a diplomatic mission or consular post or a communication between the government or a person acting on behalf of the government or another government or a person acting on behalf of another government;
• contains a communication between a Minister for the government and diplomatic mission or consular post of the State;
• contains information communicated in confidence to any person in or outside the State from a person in or outside the State relating to the above matters or to the protection of human rights and expressed by the latter person to be confidential or communicated in confidence;
• 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 of the EU, or
• relates to negotiations between the State and such organisation, organ or institution or body or within or in relation to such organisation, institution or body, or is a record of an organisation, organ, body referred to above containing information the disclosure of which is prohibited by the organisation, organ, institution or body.

Where a request is made, in relation to the above records or would, if the record existed, the above would apply and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would prejudice the matter referred to above, he shall refuse the request and shall not disclose to the requester whether or not such records exist.

The exemption is in discretionary terms so that the record may be disclosed unless the head is of the opinion that access could reasonably be expected to adversely affect the security or defence of the State, international relations or matters relating to Northern Ireland. The exemption in relation to Northern Ireland is in broad terms and is not limited to security, defence or relations matters.

A head may refuse to grant a request if in the opinion of the head, the record concerned contains information in relations to research being or to be carried out on behalf by or on behalf of a public body and disclosure before completion of the research would be likely to expose the body or other entity to serious disadvantage.  The exemption does not apply where the head is of the opinion that the public interest would be better served by the release of the information. The disclosure must be such as would affect the body or person conducting it on behalf of the body or the research itself.  It must be, likely to expose one of them to a serious disadvantage.

A head may refuse to grant a request, if, in his opinion, disclosure of the information contained in the record could reasonably be expected to prejudice the well-being of cultural heritage or national resource or a species or a habitat of species, flora or fauna.

Financial Interests of State

A head may refuse to grant a request in relation to a record if in his opinion:

• access to the record could reasonably be expected to have a serious adverse effect on the financial interest of the State or the ability of the government to manage the national economy;
• premature disclosure of information contained could reasonably be expected to result in an undue disturbance in the ordinary course of business generally or of a particular class of business in the State and access to the record would involve the disclosure of information that would in the circumstances be premature or access to the information could reasonably be expected to result in unwarranted benefit or loss to a person or class of persons.

In particular, without limiting the above, the exemption applies to records relating to any of the following:

• exchange rates or the currency of the State,
• taxes, duties and revenues of the State,
• public or local bodies interest rates,
• borrowing by or on behalf of the State,
• supervision of banking and lending,
• dealings in securities and foreign currency,
• regulations and controls of wages, prices and salaries,
• control, restriction and proposals in relation to expenditure or the control and restriction over expenditure;
• property and assets held by the State, public body or transactions or contemplated transactions concerning such assets,
• foreign investment in enterprises in the State,
• industrial development of the State,
• trade between persons in the State and persons outside the State,
• trade secrets or financial, commercial, industrial, scientific or technical information belonging to the State or a public body, which is of substantial value or likely to be of substantial value,
• 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,
• the economic or financial circumstances of the public body.

The exemption does not apply in a case where in the opinion of the head, the public interest would on balance be better served by granting than by refusing to grant of the request.