Opinion of the European Central Bank of 19 October 2012 on the freedom of information (CON/2012/76)
Date: 2012-10-19
Institutions: European Central Bank
Subjects: Ireland, access to information, administrative transparency, national law, right to information

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 the 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  Central  Bank  by  national  authorities  regarding  draft 
legislative provisions1, as the General Scheme relates to the Central Bank of Ireland (CBI). In accordance 

with  the  first  sentence  of  Article  17.5  of  the  Rules  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, incorrect or misleading, and to be given reasons 

for decisions taken by public bodies which affect them. 

1.2  The General Scheme exempts certain records from the requirement to provide access to members 

of the public (hereinafter the ‘exempt records’). The 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 negotiations by public bodies, international relations, confidential or 

commercially  sensitive  information,  and  the  financial  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.  

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OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
                                                      
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1.3  The General Scheme sets out details of the office of Information Commissioner. The Information 

Commissioner  is  to  be  independent  in  the  performance  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  Information  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  appeal  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  purposes  of  the  Freedom  of  Information  Act  2012 

(hereinafter the ‘Act’), once it is enacted. This means that the Act will apply to the CBI. The Order 

is  to  provide  that  there  will  be  no  access  to  records  which  are  subject  to  professional  secrecy 

obligations under the Statute of the European System 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 section 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  disclosure  by  the  CBI  of  such  information  to  certain 

bodies on the basis that those bodies comply with these 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 enhancing the legitimacy and 

accountability of the CBI by providing for access to certain records. 

2.2  The  ECB  also  welcomes  that  certain  records  are  exempt.  This  aims  to  protect  certain  public  and 

private interests. The categories of exempt records 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 deviates substantially from the General Scheme.  

3. 

Professional secrecy obligations 

3.1  The  obligation  of  professional  secrecy  for  ECB  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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primacy of EU law and rules adopted thereunder also means that national laws on access by third 

parties  to  documents  may  not  lead  to  infringements  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 thereof which provides that ‘documents that 

are  in  the  possession  of  an  NCB  and  have  been  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 concerning the scope of access, unless it is clear that the 

document shall or shall not be disclosed. Alternatively the NCB may refer the request to the ECB.’ 
The General Scheme should ensure consistency with the Treaties4, 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 Financial Services Directives. The ECB understands that 

this  is  an  absolute  exemption  for  which  the  restrictions  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  the  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 shall be subject to this Union legislation. The 

Order  should  therefore  be  wide  enough  to  cover  all  Union  legislation  imposing  an  obligation  of 

secrecy. 

3.3  The  ECB  expects  that  there  will  be  no  legal  inconsistency  or  uncertainty  as  regards  the  relation 

between the Order and the amended section 33AK. The amended section 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  Information  Commissioner  is  entitled  to  request 

documents from the CBI. In this regard, the ECB expects that this procedure is without prejudice to 

the ESCB’s confidentiality regime and the applicable public access legislation. The ECB notes that 

the CBI may appeal to the Irish High Court on a point 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  professional  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 Information Commissioner determines that a refusal to grant 

access to records in reliance on the exemption for professional secrecy obligations is not justified. 

Access  to  the  records  should  also  be  prohibited  until  the  relevant  court  or  body  has  ruled  on  the 

case. 

2  
3  
4  

See the ECB’s Convergence Report, May 2012, p. 28. 
OJ L 80, 18.3.2004, p. 42. 
See also Article 15(3) of the Treaty according to which the ECB shall be subject to the public access regime of the Union 
only when exercising its administrative tasks. 

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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 

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