EN ECB-PUBLIC 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 19 October 2012 
on the freedom of information 
(CON/2012/76) 
 
Introduction and legal basis 
On 6 September 2012, the European Central Bank (ECB)  received a request from the Irish Minister for 
Public Expenditure and Reform for an opinion on th e General Scheme of the Freedom of Information Bill 
2012. 
The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the European Union and the third indent  of Article 2(1) of Council Decision 98/415/EC of 
29 June 1998 on the consultation of the European Ce ntral Bank by national authorities regarding draft 
legislative provisions1, as the General Scheme relates to the Ce ntral Bank of Ireland (CBI). In accordance 
with the first sentence of Article 17.5 of the Rule s of Procedure of the European Central Bank, the 
Governing Council has adopted this opinion. 
 1. Purpose of the General Scheme  
1.1  The General Scheme consolidates and restates the freedom of information legislation in Ireland. 
The General Scheme provides members of the public  with the right to obtain access to information 
in the possession of public bodies, to have personal information relating to them in the possession 
of public bodies corrected where it is incomplete, in correct or misleading, and to be given reasons 
for decisions taken by public bodies which affect them. 
1.2 The General Scheme exempts certain records fro m the requirement to provide access to members 
of the public (hereinafter the ‘exempt records’). Th e exempt records that might be relevant from the 
perspective of the CBI include records relating to  deliberations of public bodies, investigative 
functions of public bodies and nego tiations by public bodies, intern ational relations, confidential or 
commercially sensitive information, and the financ ial and economic interests of public bodies. 
Many of these records are only partially exempt as information can only be withheld if it can be 
shown that specific harm or injury would arise from disclosure. Many of the exempt records are 
also subject to an overall test of whether disclosure would be in the public interest.  
                                                      
1  OJ L 189, 3.7.1998, p. 42.   
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2 1.3 The General Scheme sets out details of the offi ce of Information Commissioner. The Information 
Commissioner is to be independent in the perfo rmance of his or her functions. The Information 
Commissioner is to be appointed by the President  of Ireland on the advice of the Irish Government 
following a resolution of the Irish Parliament recommending his or her appointment. Under the General Scheme, the powers of the Informati on Commissioner include the power to review 
decisions of public bodies in relation to freedom of  information requests and, where necessary, to 
make binding decisions in relation thereto. The General Scheme provides that a requester who is 
refused access to records may a ppeal to the Office of the Information Commissioner, who may 
affirm, vary or annul the decision.
   
1.4 The General Scheme proposes that the Minister will, by way of an order (hereinafter the ‘Order’), 
declare that the CBI is a public body for the pu rposes of the Freedom of Information Act 2012 
(hereinafter the ‘Act’), once it is enacted. This m eans that the Act will apply to the CBI. The Order 
is to provide that there will be no access to r ecords which are subject to professional secrecy 
obligations under the Statute of the European Syst em of Central Banks and of the European Central 
Bank (hereinafter the ‘ESCB Statute’) or EU Financial Services Directives.  
1.5 The ECB understands that an amendment to sec tion 33AK of the Central Bank Act 1942 may be 
required. Section 33AK currently prohibits the disclosure by the CBI of information that is subject to professional secrecy obligations under the Treaty, the ESCB Statute or the Supervisory Directives. However, section 33AK allows disclosur e by the CBI of such information to certain 
bodies on the basis that those bodies comply with th ese professional secrecy obligations. It may be 
necessary to add the Information Commissioner as a body to whom this information can be 
disclosed. 
 2. General observations 2.1 The ECB generally welcomes the General Scheme which is aimed at enhanc ing the legitimacy and 
accountability of the CBI by providi ng for access to certain records. 
2.2 The ECB also welcomes that certain records ar e exempt. This aims to protect certain public and 
private interests. The categories of exempt record s are intended to ensure balance between the right 
of access for the general public to CBI records and the need for the confidentiality of certain CBI 
records. 
2.3
 Once the General Scheme has been  adapted into the Freedom of Information Bill 2012, the ECB 
looks forward to a consulted in the event it de viates substantially from the General Scheme.  
 3. Professional secrecy obligations 3.1 The obligation of professional secrecy for E CB and NCB staff under Article 37 of the ESCB 
Statute may give rise to similar provisions in the NCBs’ statutes or national legislation.
 The 
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3 primacy of EU law and rules adopted thereunder also means that national laws on access by third 
parties to documents may not lead to infringeme nts of the European System of Central Bank’s 
confidentiality regime2, and on the legal provisions on access to documents of the ECB. In this 
regard, the ECB refers to Decision ECB/2004/3 of  4 March 2004 on public access to European 
Central Bank documents3 and in particular to Article 5 thereo f which provides that ‘documents that 
are in the possession of an NCB and have b een drawn up by the ECB as well as documents 
originating from the EMI or the Committee of Governors may be disclosed by the NCB only subject to prior consultation of the ECB concerni ng the scope of access, unless it is clear that the 
document shall or shall not be disclosed. Alterna tively the NCB may refer the request to the ECB.’ 
The General Scheme should ensure  consistency with the Treaties
4, the ESCB Statute and secondary 
EU legislation.  
3.2 In this respect, the Order will be limited to  access to records, subject to professional secrecy 
obligations under the ESCB Statute or EU Financ ial Services Directives. The ECB understands that 
this is an absolute exemption for which the restric tions referred to in 1.2 of this Opinion are not 
applicable. In this context, the ECB would welcome an opportunity to review the Order so as to determine whether it will sufficiently protect th e professional secrecy obligations in the ESCB 
Statute. Article 37.2 of the ESCB Statute provides that persons having access to data covered by Union legislation imposing an obligation of secrecy sh all be subject to this Union legislation. The 
Order should therefore be wide enough to cover al l Union legislation imposing an obligation of 
secrecy. 
3.3 The ECB expects that there will be no legal in consistency or uncertainty as regards the relation 
between the Order and the amende d section 33AK. The amended s ection 33AK and the Order must 
be without prejudice to the ESCB’s confidentiality regime.  
3.4 The ECB understands that if a requester asks  the Information Commissioner for a review of the 
CBI’s refusal of access to documents, the In formation Commissioner is entitled to request 
documents from the CBI. In this regard, the ECB exp ects that this procedure is without prejudice to 
the ESCB’s confidentiality regime and the applicab le public access legislation. The ECB notes that 
the CBI may appeal to the Irish High Court on a poi nt of law only if the Information Commissioner 
decides that it is appropriate to  grant access to CBI records. The ECB would welcome clarification 
in the Order that, given the protection that pr ofessional secrecy obligations are afforded in the 
ESCB Statute, the CBI will have an absolute right of appeal to a court or another body (and not just 
an appeal on a point of law) where the Informati on Commissioner determines that a refusal to grant 
access to records in reliance on the exemption for pr ofessional secrecy obligations is not justified. 
Access to the records should also be prohibited unt il the relevant court or body has ruled on the 
case. 
                                                      
2  See the ECB’s Convergence Report, May 2012, p. 28. 
3  OJ L 80, 18.3.2004, p. 42. 
4  See also Article 15(3) of the Treaty according to which the E CB shall be subject to the public access regime of the Union 
only when exercising its administrative tasks. 
ECB-PUBLIC  
4  
This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 19 October  2012. 
 
[signed] 
 
The President of the ECB 
Mario DRAGHI