Commissions of Investigation Act 2004

Determinations on privilege.

21

21.—(1) Subject to subsection (4), nothing in this Act compels—

( a) the disclosure by any person of any information that the person would be entitled under any rule of law or enactment to refuse to disclose on the grounds of any privilege or any duty of confidentiality, or

( b) the production of any document in the person's possession or power containing such information.

(2) Where a person claims to be entitled under any rule of law or enactment to refuse, on the grounds of any privilege or any duty of confidentiality—

( a) to disclose any information required in the course of an investigation by a commission (including information required in response to a request made under section 14(5) or to a question put under section 16 and information in a statement or answer that is the subject to a direction under section 16(1)(h) , or

( b) to produce any document in the person's possession or power that the person is directed under this Act to produce,

the commission may, subject to subsection (4) of this section, determine whether the privilege or the duty of confidentiality applies to that information or document.

(3) Where the commission determines that the privilege or the duty of confidentiality relied on by a person as grounds for refusing to disclose information referred to in subsection (2)(a) does not apply to the information, the person shall disclose that information to the commission unless the determination is overturned under section 22 .

(4) A determination may only be made under subsection (2)(b) in relation to a document if the commission has—

( a) examined the document, and

( b) considered a written statement provided by the person concerned specifying the grounds for the claim, including the privilege or duty of confidentiality relied on.

(5) For the purposes of subsection (4), the person concerned shall, at the commission's request—

( a) submit the document to the commission within the period specified in the request, and

( b) unless exempted under subsection (6), provide the commission, within that period, with the written statement referred to in subsection (4)(b).

(6) A person who has already provided the commission with an affidavit under section 16(1)(f) specifying the basis for objecting to the production of a document need not provide a written statement under subsection (5)(b) of this section concerning the same document.

(7) If a person does not, within the specified period, comply with a request of a commission to submit a document for a determination under this section or to provide a written statement under subsection (5)(b)

( a) the chairperson of the commission or, if the commission consists of only one member, the sole member may apply to the Court for an order directing the person to comply with the request, and

( b) on the hearing of the application, the Court may make or refuse to make the order.

(8) Where the commission determines that the privilege or the duty of confidentiality relied on as grounds for refusing to produce a document applies to any of the information in the document, the document is not considered to be evidence received by the commission, except to the extent authorised under subsection (10).

(9) Where the commission determines that the privilege or duty of confidentiality relied on as grounds for refusing to produce a document applies to any of the information in the document, the commission may cause to be prepared a summary version of the document that excludes that information, but only if—

( a) the document so allows, and

( b) in the commission's opinion, it is in the interests of both the investigation and fair procedures to do so.

(10) Where a commission causes a summary version of a document to be prepared in accordance with this section, the summary version forms part of the evidence received by the commission.

(11) Where the commission determines that the privilege or the duty of confidentiality relied on as grounds for refusing to produce a document does not apply to any of the information in the document, the document is considered for the purposes of this Act to have been received as evidence by the commission unless the determination is overturned under section 22 .

Annotations

Modifications (not altering text):

C7

Application of section restricted (1.08.2016) by Commission of investigation (Irish Bank Resolution Corporation) Act 2016 (10/2016), s. 2(2), S.I. No. 438 of 2016).

Powers of Commission

2. ...

(2) Notwithstanding section 21 of the Act of 2004, the Commission may, where it considers that the disclosure to the Commission of information—

(a) that, but for this section, a person could not be compelled to disclose by virtue of the existence of a duty of confidentiality under any enactment or rule of law, or

(b) to which Article 27 of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 (OJ No. L 173, 12.06.2014, p.1) applies,

is necessary to enable the Commission to perform its functions, compel any person to disclose that information or produce any document containing that information to the Commission and, accordingly, the Commission may admit in evidence that information or any such document.

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