Freedom of Information Act 2014

34.

Conclusiveness of certain decisions pursuant to sections 32 and 33

34. (1) (a) Subject to paragraph (b), where—

(i) a Minister of the Government or the head of an FOI body (other than a Department of State) in relation to which functions stand conferred on that Minister of the Government—

(I) pursuant to section 13 , refuses to grant an FOI request to him or her, or

(II) pursuant to section 21 , upholds a decision, or decides, to refuse to grant an FOI request,

because he or she is satisfied that, by virtue of section 32 or 33 , the record concerned is an exempt record, and

(ii) the Minister of the Government is satisfied, that the record is of sufficient sensitivity or seriousness to justify his or her doing so,

the Minister of the Government may declare, in a certificate issued by him or her (“certificate”), that the record is, by virtue of section 32 or 33 , an exempt record.

(b) A Minister of the Government shall not issue a certificate in respect of a record the subject of a decision referred to in clause (I) or (II) of paragraph (a)(i) by the head of an FOI body (other than a Department of State) unless he or she has been requested by the head, in writing or such other form as may be determined, to do so.

(2) Where an application is made to a head for the review under section 21 of a decision to refuse to grant an FOI request, a certificate shall not be issued in respect of the record concerned more than 3 weeks after the date of the receipt of the application by that head.

(3) While a certificate is in force—

(a) the record to which it relates shall, subject to this Act, be deemed conclusively to be an exempt record, and

(b) an application for a review under section 21 or 22 , as may be appropriate, of the decision concerned under section 13 or 21 in relation to the record shall not lie.

(4) A document purporting to be a certificate and to be signed by a Minister of the Government shall, unless the contrary is proved, be deemed to be a certificate of that Minister of the Government and to be in force and shall be received in any proceedings in a court or under section 21 or 22 without further proof.

(5) A certificate shall specify—

(a) the FOI request concerned,

(b) the provisions of section 32 or 33 , as may be appropriate, by reference to which the record to which it relates is an exempt record,

(c) the date on which the certificate is signed by the Minister of the Government concerned and the date of its expiration, and

(d) the name of the requester,

and shall be signed by the Minister of the Government by whom it is issued.

(6) Upon the issue of a certificate, the Minister of the Government concerned shall cause—

(a) a copy of the certificate to be furnished forthwith to the requester concerned, and

(b) a copy of the certificate and a statement in writing of the reasons why the record to which it relates is an exempt record and of the matter by reference to which the Minister of the Government is satisfied that subsection (1)(a)(ii)applies to the record to be furnished forthwith to the Taoiseach and such other Ministers of the Government as may be prescribed.

(7) (a) Subject to paragraph (b), the Taoiseach, jointly with any other Ministers of the Government standing prescribed under subsection (6), shall—

(i) as soon as may be after 1 January 2015, review the operation of subsection (1), and

(ii) on the expiration of each period of 12 months (or such other period not exceeding 24 months in length as may be prescribed) from that date, review the operation of subsection (1) during that period.

(b) A Minister of the Government shall not take part in a review under this subsection in so far as it relates to a certificate issued by him or her but may make submissions to the other Ministers of the Government concerned in relation to the part of such a review in which he or she is precluded as aforesaid from taking part.

(c) If, following a review under this subsection, the Ministers of the Government concerned are not satisfied—

(i) that a record to which the certificate concerned relates is an exempt record, or

(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,

they shall request the Minister of the Government concerned to revoke the certificate.

(d) A Minister of the Government may, for the purposes of a review by that Minister of the Government under this subsection, examine all relevant records held by or on behalf of or under the control of another head.

(8) (a) The Taoiseach may, at any time, review the operation of subsection (1) in so far as it relates to any other Minister of the Government or the issue of a particular certificate by another Minister of the Government.

(b) Paragraph (c) and (d) of subsection (7) shall have effect in relation to a review under this subsection with the necessary modifications.

(9) A Minister of the Government may, and shall, if so requested pursuant to subsection (7) (c), by instrument signed by him or her, revoke a certificate issued by that Minister of the Government and, if he or she does so, he or she shall cause the requester concerned to be furnished forthwith with a copy of the instrument.

(10) If a certificate or the decision concerned under section 13 or 21 in relation to a record to which a certificate relates is annulled by the High Court under section 24 , the certificate shall thereupon expire.

(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.

(12) Where a certificate is revoked or has expired and another certificate is not in force in relation to the record concerned or the certificate is annulled under section 24 , the requester concerned may make an application for a review under section 21 or 22 , as may be appropriate, of the decision concerned under section 13 or 21 not later than 28 days after the date of the revocation, expiration or annulment, as the case may be.

(13) Subject to subsections (9) and (10), a certificate shall remain in force for a period of 2 years after the date on which it is signed by the Minister of the Government concerned and shall then expire, but a Minister of the Government may, at any time, issue a certificate under this section in respect of a record in relation to which a certificate had previously been issued, unless pursuant to—

(a) a decision (which has not been reversed) following a review under sections 21 or 22 , or

(b) a decision under section 24 on an appeal to the High Court,

the record is not an exempt record.