Freedom of Information Decision Makers Manual Part 2: Exemptions & Consultation Procedures

This subsection provides that a Minister who issues a certificate must arrange for a copy to be given at once to the person who sought the record to which the certificate relates. The Minister must also supply the Taoiseach (and/or other Government Ministers as may be prescribed), with a copy of the certificate and written reasons as to:

Subsection (a) provides that the Taoiseach (with such other Government Ministers as may be prescribed) must periodically review the issuing of certificates. Following the completion of the last review provided for under the 2014 Act, such reviews take place in respect of subsequent periods of 12 months (or longer periods up to 24 months as may be prescribed).

(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

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

This subsection requires a Minister to revoke a certificate when requested to do so by either the Taoiseach (or the Taoiseach acting with reviewing Ministers) following a review. A minister may on his/her own initiative also revoke a certificate.

It should be noted that section 24 provides for appeal on a point of law to the High Court against the issue of a certificate on the grounds that:

(ii) the record the subject of the certificate is not exempt.

Subsection (10) provides that a certificate must expire if either the certificate itself or the decision to exempt the record to which the certificate relates is annulled by the High Court.
8.3.11 Section 34(11) - Annual reporting to Commissioner on usage of certificates


(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 32 or 33, as may be appropriate, by virtue of which, pursuant to section 13, the grant of the FOI request concerned was refused, or, pursuant to section 21, a decision to uphold a decision to refuse to grant, the FOI request concerned was made.

This subsection obliges each Minister who has issued a certificate to annually advise the Information Commissioner of the number of certificates issued by him/her in the preceding year. The notice to the Commissioner must specify the particular provisions which were invoked to exempt the record to which the certificate relates. All notices to the Commissioner will be appended to the Commissioner's annual report to be prepared and published under section 47.

8.3.13.1 Duration

This subsection provides that a certificate will remain in force for 2 years from the date on which it is signed by a Minister, unless in the meantime it is revoked by the Minister him/herself, or following review by the Taoiseach and/or other Ministers, or annulled by the High Court.
8.3.13.2 Renewal

A Minister can renew a certificate at any time provided that the decision to exempt the records which led to issuing of the certificate was not reversed in the meantime at internal or Information Commissioner review or in the High Court. Internal review or Commissioner review might arise where, during an interval in which a certificate had lapsed, the record had been the subject of appeal in either such fora.

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  Ministerial certificates should rarely be used. Given the strength of the protections in section 32 and 33, Departments are strongly advised that this provision should fall to be considered for usage only in most exceptional circumstances.
  

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  Instead, where exempt records of particular seriousness or sensitivity are the subject of an FOI request, departments are urged instead to consider the appropriate use of the "refusal to confirm or deny" provision.
  

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  No delegation arrangements may apply in respect of the issue of a certificate.
  

(ii) such information is subject to a legal duty of confidence

This is one of three linked sections relating to information provided to an FOI body by a third party. The other provisions are section 36 (commercially sensitive information) and section 37 (personal information). All three sections must be subject to the consultation procedures under section 38 where disclosure of information is contemplated in the public interest.
9.1 When should you consider this section?
This section should be considered when a record contains confidential information.
9.1.1 Such records might include:

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   information from confidential sources relating to investigations, ongoing negotiations, etc.
   

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   referee reports on applicants for positions with the body
   

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   information of a personal nature received in confidence (section 37 may also apply)
   

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   information of a commercially sensitive nature received in confidence (section 36 may also apply)
   

1. 
   the record concerned contains information given to an FOI body in confidence
   

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   on the understanding that it would be treated as confidential (including such information as aforesaid that a person was, or could have been, required by law to provide)
   

3. 
   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
   

4. 
   it is of importance to a body that such further similar information should continue to be provided
   

The information must have been given and received in confidence i.e. a mutuality of confidence exists. The fact that a party asserts that information was supplied in confidence is not conclusive; it must be shown also that the recipient knew or ought to have known of the confidential nature of the information

Information may be subject to an obligation of confidence from the circumstances surrounding the receipt of the information. An obligation of confidence arises in circumstances such that a reasonable person standing in the shoes of the recipient would have realised, upon reasonable grounds that the information was being given in confidence.

An obligation of confidence may also arise because of the nature of the relationship between the confider and the recipient, the circumstances in which the information came into the hands of the recipient and the nature of the information itself

The following factors may also be relevant to determine the existence of confidentiality and its scope:

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  whether the information was supplied gratuitously or for a consideration;
  
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  whether there is any past practice of such a kind as to give rise to an understanding;
  
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  whether the confider expressly warned the receiver of the information against a particular disclosure or use of the information
  

Having established that the information is confidential and having considered the likely effects of disclosure, the decision maker must then assess the importance to the body that such further similar information should continue to be provided. This will naturally depend on the nature of the information in question and the extent to which its continued receipt is necessary for the effective discharge of the body’s functions.