Decision
Mr Y and Department of Finance
From Office of the Information Commissioner (OIC)
Case number: OIC-152813-P8M3F0 and OIC-152825-B6L2L8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152813-P8M3F0 and OIC-152825-B6L2L8
Published on
Whether the Department was justified in refusing access, under sections 35(1)(a), 36(1)(a), 36(1)(b), and/or 36(1)(c) of the FOI Act, to the schedules referred to in two Statutory Instruments to the Central Bank Act 1971 concerning KBC Bank
29 August 2025
By way of background, this review concerns records referenced in two statutory instruments (SIs). The first - S.I. No. 125/2009 - Central Bank Act 1971 (Approval of Scheme of KBC Mortgage Bank and KBC Bank Ireland PLC) Order 2009 (hereafter referred to as “the 2009 SI”) - approved the transfer of the banking business of KBC Mortgage Bank to KBC Bank Ireland plc. in accordance with the transfer scheme and related agreement submitted to the Minister for Finance (the Minister). The second - S.I. No. 447/2023 - Central Bank Act 1971 (Approval of Scheme of Transfer Between KBC Bank Ireland Public Limited Company and KBC Bank N.V.) Order 2023 (hereafter referred to as “the 2023 SI”) - approved the transfer of certain business of KBC Bank Ireland PLC to KBC Bank N.V. in accordance with the transfer scheme and related agreement submitted to the Minister.
In a request dated 09 April 2024, the applicant sought access to the three schedules to the agreement referred to in the 2009 SI. In a request dated 15 April 2024, he sought access to the schedule to the agreement referred to in the 2023 SI. In two separate decisions dated 01 May 2024, the Department refused both requests under section 35(1)(b) of the FOI Act. On 08 May 2024, the applicant sought an internal review of both decisions. The Department’s internal review decisions were issued on 17 May 2024 and 23 May 2024 in which it affirmed its original decisions to refuse the requests. The applicant applied this Office for a review of both decisions on 11 and 12 October 2024, respectively.
During the review, the Department argued that the four records at issue are also exempt under sections 35(1)(a), 36(1)(a), 36(1)(b), and 36(1)(c) of the FOI Act. The applicant was duly informed of these new material issues and was invited an opportunity to provide a submission in response. Three further submissions were received from the applicant.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Department. I have also had regard to the contents of the records concerned. Due to the fact that both cases involve the same parties and deal with similar records, I have decided to conclude both reviews by way of a formal, binding composite decision.
This review is solely concerned with whether the Department was justified in refusing access to the four schedules at issue under sections 35(1)(a), 35(1)(b), 36(1)(a), 36(1)(b), and/or 36(1)(c) of the FOI Act.
Section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. I also note that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigating complaints against a public body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
In his correspondence with the Department, the applicant said he understood that the schedules attached to any statute form part of the statute and must be read together with the statute for all purposes of construction. He said the schedules are attached to statute to deal with as to how claims or rights under it are to be asserted or as to how powers conferred under it are to be exercised.
In its submissions to this Office, the Department explained that the term “Schedule”, in the SIs in question does not mean Schedules to the SIs but rather it is a reference to the confidential documentation (Transfer Agreement and Scheme of Transfer with Schedules) that a bank seeking Ministerial approval of a proposed transfer of banking business is required to submit to the Minister under section 33 of the Central Bank Act 1971. In other words, the Schedules form part of the documentation submitted to the Minister and do not comprise Schedules to the SIs themselves.
Section 35(1)(b) provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).
In the Supreme Court decision in the case ofMahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
1. “the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
I have adopted this approach in considering whether disclosure of the records sought would constitute a breach of an equitable duty of confidence in this case.
In its submissions to this Office, the Department said that under section 33 of the Central Bank Act, 1971 (as amended), the Minister may be requested to give his approval for any transfer of authorised banking business in the State where submitted by one or more banking institutions. It said certain provisions of the Central Bank Act 1971 were included at the time of its drafting to facilitate the transfer and merger of banking businesses to ensure the effective and orderly transfer of banking businesses and therefore, stability in the Irish banking system.
The Department said the intention of the Oireachtas in legislating for this matter was that banks in the Irish market could utilise section 33 of the 1971 Act to transfer banking businesses under a public and statutory framework rather than solely under private contractual arrangements. It said it is in the State’s interest for entities to use this legal structure and for the transfers to be subject to Ministerial approval. It said the negative outcomes of banking entities avoiding using these structures could result in the increased use of trade sales by banks or disorderly sales of banking business. It said these outcomes would result in negative impact for customers, the banking sector and the wider economy. It said section 33 was thus enacted to provide a legal, robust, transparent and regulatory controlled mechanism for such transfers, particularly in circumstances involving customer accounts (personal and business), assets and liabilities, regulatory permissions and details of on-going commercial relationships with other financial entities and with external service providers. It said use of the statutory route ensures proper oversight by the Central Bank of Ireland, and the European Central Bank, and provides legal certainty for affected parties and facilitates the efficient continuation of banking services. It said it is therefore important to financial stability generally and across the banking sector.
The Department argued that the release of the records sought would constitute a breach of an equitable duty of confidence owed to KBC. On the matter of whether the information in the records has the necessary quality of confidence about it. The Department said that in both cases, the information supplied to the Department was provided in confidence by KBC with the expectation that it was to be treated as commercially sensitive and should remain private and confidential. It said this is because the documents refer to the commercial business activities of KBC in terms of an internal restructuring of the Bank in 2009 and the transfer of the remaining business of KBC (other than that transferred to Bank of Ireland) in 2023 to the KBC branch established in Ireland to carry out the remaining business in Ireland. It said these were internal commercial decisions to which the Department and the Minister were privy because of a decision by KBC to use section 33 of the 1971 Act to transfer its business. It said the information provided to the Minister and the Department was considered, and remains, secret and confidential. It said it concerns private matters relating to the internal re-organisation of KBC in 2009 and the last actions of KBC in establishing an EU branch, transferring assets to Bank of Ireland (through other similar transfers under section 33) and returning its domestic banking licence. It said all of these agreements would have been known in public in that they were happening but the details and the information in the transfer documents received by the Department would only be available to those who needed to see such information. It said the documents submitted to the Minister seeking a transfer of banking business approval contains commercially sensitive confidential information which would never have been supplied to the Department only in the context of the relevant transfers of business. It argued that the information supplied was therefore secret and that secrecy needs to be maintained.
The Department further argued that the circumstances in which the information was communicated also established a duty of confidence. It said, for example, that the 2023 transfer of functions order imposed an explicit duty of confidentiality. It said that in the 2009 transfer documents, there was an implicit expectation that the information provided would be treated with confidence given its significance to KBC but also to the wider banking sector. It said it would have been reasonable for KBC to expect confidential treatment and reasonable for the Department and the Minister to provide such treatment without a formal and explicit indication of such treatment, given the significance of the transfer and the rarity of these arrangements. It said the information in the documents includes the assets of KBC to be transferred – not just financial instruments, assets and liabilities but also contractual arrangements with third parties (some of which are still operational). It said none of the material provided was sourced or prepared within the Department – it was all drafted by KBC and/or its legal and professional advisors. It argued that given the nature of the material and its source, an obligation of confidence must be assumed.
On the matter of the third test, i.e. that the disclosure of the information would result in an unauthorised use to the detriment of the party who communicated it, the Department argued that there could be detrimental impacts on KBC. It said that while KBC has wound down its Irish Bank, it continues to have business in Ireland via its branch. It said there could be detrimental impact on Bank of Ireland should its competitors have access to commercially sensitive information or be in a position to ascertain such from the provision of the schedules at issue in this case or schedules submitted to support other transfer of banking business orders.
In his submissions, the applicant asserted that the net issue arising in this review is that the Department’s failure to make the schedules public allows for the SIs in question to be used as an “engine of fraud”. He referred in detail to the circumstances surrounding a financial transaction involving the sale of mortgages between KBC Mortgage Bank (formerly known as IIB Homeloans Ltd) and KBC Bank Ireland PLC. He said that the purpose of the 2009 SI was to facilitate the transfer of banking business from KBC Mortgage Bank to KBC Bank Ireland PLC. He a specified company (Company A), which is a separate legal entity to KBC Bank Ireland PLC, by way of a true sale in June 2008. As such, he argued that the assets owned by Company A could not possibly be part of the assets transferred to KBC Bank Ireland PLC via the 2009 SI.
The applicant also referred to 10 court cases which he claims give the false impression that KBC Mortgage Bank transferred its entire banking business to KBC Bank Ireland PLC. He said that this implies that KBC Mortgage Bank (when it was known as IIB Homeloans Ltd) never sold its mortgages to Company A and that the chain of ownership between IIB Homeloans Ltd and KBC Bank Ireland PLC was never broken. The applicant also said that numerous residential mortgages were sold to Company A around June 2009, according to the company accounts for IIB Homeloans Ltd and KBC Bank Ireland. He said the Minister was deliberately misled and not informed of this sale. He said that as the details of the sale of these mortgages were withheld from the Minister and the Department, information was provided to the Department with the intent to mislead and that information provided in such circumstances cannot be deemed to be confidential. In his applications to this Office, the applicant also argue that the Department could not claim an exemption for the records based on confidentiality concerns as there were no confidentiality clauses provided for in the SIs in question, nor is there one in the Central Bank Act 1971.
The applicant cited various past decisions of this Office wherein we found that the public interest in transparency and accountability outweighed the potential harm to the commercial or confidential information. And where we found that the information at issue was not given in confidence and would prejudice the provision of further information in the future.
As I have outlined above, this Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b) and that the tests to be applied in considering if a breach of a duty of confidence would arise are as summarised by Fennelly J inMahon v Post Publications Ltd .
On the matter of whether the information contained in the Schedules has the necessary quality of confidence about it, the essence of the applicant’s argument is that the information in the records was provided to the Minister with the intent to mislead and that information provided in such circumstances cannot be deemed to be confidential. It is not a matter for this Office to examine and/or investigate the applicant’s allegations. I accept that the records at issue formed part of the documentation submitted by KBC to the Minister pursuant to section 33 of the Central Bank Act 1971 for the purpose of the transfer of certain banking business. I am satisfied that the information in the records is information that concerns private matters that is not in the public domain. I am therefore satisfied that the information in the records has the necessary quality of confidence about it.
I also accept the Department’s submissions as to the basis for considering that the information in the records was imparted in circumstances imposing an obligation of confidence on the Minister/Department. To meet this test, the circumstances in which information is communicated must be such that a duty or obligation of confidence is imposed. Relevant matters for consideration in this regard may include, but are not limited to, whether there were any assurances of confidentiality; the expectations of the parties and the reasonableness of any such expectation; the nature of the information; the purpose for which the information was provided; the functions being performed by the FOI body and the relevance of the information to those functions; and the broader context in which the information is provided and may be disclosed.
In this case, the information at issue comprises information about the commercial operations of the bank and was given to the Minister for the specific and limited purpose of obtaining the Minister’s approval of the transfer scheme pursuant to section 33 of the Central Bank Act 1971 and solely to assist the Minister in determining if such approval should be given. It was entirely reasonable, in my view, for the bank to expect that the information would be used solely for the purpose for which it was intended and that it would not subsequently be made available to the world at large. Indeed, I also note that the cover letter from KBC in relation to the 2023 SI was marked “Commercially Sensitive and Strictly Private and Confidential” and seeks an assurance from the Department that an FOI request for these records would be refused under sections 35 or 36 (which protects commercially sensitive information).
I would add that in the absence of any expectation that such information would be treated as confidential, it seems unlikely that financial institutions would make use of section 33 of the Central Bank Act 1971 to transfer banking business and could, instead, rely on private contractual arrangements to avoid the possibility of information relating to their commercial affairs being disclosed. I find that the second test is met in this case.
On the matter of whether the disclosure of the information would result in an unauthorised use to the detriment of the party who communicated it (or where it is wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence), I am satisfied in this case that it would. Having regard to the circumstances in which the information at issue was given and obtained, I am satisfied that its disclosure would comprise a wrongful communication by the Department of the information.
In conclusion, therefore, I am satisfied that all three tests are met for section 35(1)(b) to apply in this case. In his submissions, the applicant has strongly argued that there is a strong public interest in the release of the information at issue. It is important to note that section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence. I understand that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public.
In its submissions, the Department said the records at issue concern commercial transactions within KBC where KBC had already decided to exit the domestic banking market in Ireland, which was going to happen in any event. While the applicant’s arguments in support of the release of the records are essentially concerned with the identification of public interest factors which support release, such as improved transparency, he does appear to be of the strongly held view that the disclosure of the records would reveal wrongdoing on the part of the bank. As I have outlined above, he said information was provided to the Department with the intent to mislead. Section 25(3) of the FOI Act provides that I must take all reasonable precautions in the course of a review to prevent the disclosure of exempt information. As such, while I believe that section 25(3) prohibits me form describing the details of the information contained in the records in any, I can say that having examined them, I am not persuaded that their disclosure would reveal any such wrongdoing.
Accordingly, I find that the Department was justified in refusing access to the records sought under section 35(1)(b) of the FOI Act. Having so found, it is not necessary for me to consider the applicability of the other exemptions cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified in refusing access to the records concerned under section 35(1)(b) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty,
Senior Investigator.