Charlie McCreevy (Kildare North, Fianna Fail)

I oppose amendment No. 37. The purpose of section 19 is to clarify that the protection available to information obtained in confidence applies across public bodies. It will also permit a head to refuse to confirm or deny the existence of a record if the record is covered by the exemptions in section 26(1)(a), that is, information obtained in confidence under the principal Act where the mere acknowledgement of the existence or non-existence of the record could undermine or reveal the sensitive information contained in the record. It is essential that such a prudent provision should be included in relation to the text of information obtained in confidence. I will not accept the amendment.

I am not accepting amendment No. 38 which I know has been suggested by the Information Commissioner to prevent agreements being entered into for the purpose of the avoidance of release of information under the Freedom of Information Act. I am not aware of any such instances. I also understand that confidentiality agreements are invoked in the context of the Freedom of Information Act only very rarely.

In framing the original Act, the Oireachtas recognised the importance of protecting, to the maximum extent, the legally binding duties of confidence arising from agreements or enactments not specified in the Third Schedule to the Act. Such agreements and enactments are not subject to an explicit public interest test. I am satisfied that this should continue to be the case. The insertion of an explicit public interest test in the Act could create uncertainty in relation to the protection of information subject to a legally binding duty of confidence. While international case law supports a high degree of protection for a duty of confidence arising from a confidentiality agreement, the courts have tended to apply this protection only to agreements considered to have been validly made. Agreements found to have been entered into for the purpose of the avoidance of release of information under the Freedom of Information Act are not likely to be considered valid. This view has been supported by the advice of the Attorney General and this advice has, in turn, been conveyed to the public bodies by the freedom of information central policy unit. This view could also be stressed in the context of training development on the Act. Therefore, I do not share the concern expressed by the Information Commissioner that public bodies may be using such agreements for the purpose of avoiding the release of information. If they are, such agreements run the risk of being struck down.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment No. 38 not moved.