Cinneadh
Mr Y and Central Bank of Ireland
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149209-M6T6L7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149209-M6T6L7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Central Bank was justified in refusing access, under section 42(i), 41(1) and/or 33(1) of the FOI Act, to certain records relating to an EU-wide crisis simulation exercise
8 April 2025
In a request dated 19 March 2024, the applicant made an FOI request to the Central Bank for (1) a copy of the documents relating to the EU wide Crisis Simulation Exercise (Archive File Reference F1893683) and (2) a copy of the Irish Nationwide Building Society Public file for the year 2008 (Archive File Reference F1893817). This request was made following correspondence between the applicant and the Central Bank on an earlier, and broader, FOI request which the applicant ultimately withdrew.
On 16 April 2024, the Central Bank part-granted the request. It identified 12 records falling within part 1 of the request and released parts of eight of those records, with the remainder refused under sections 42(i), 41(1), 33, 37(1) and 15(1)(d) of the FOI Act. It refused access to records falling within part 2 of the request under section 15(2)(a), on the basis that these records were available to view on site subject to making an appointment with the Central Bank’s Records and Archives team.
The applicant sought an internal review of this decision on 22 April 2024. In relation to part 1 of the request, he pointed to the historic nature of the documents and suggested that they had no bearing on financial stability issues today, in Ireland or the Euro system more widely. He said that the Central Bank’s position appeared to suggest that the records would be sealed in perpetuity with no reference in the decision as to a possible future release date, and queried why they were housed in the Central Bank’s archive facility if they are effectively sealed in perpetuity under the Rome Treaty or ESCB Statute. He said that no explanation had been given as to “what records are purely bearing upon domestic areas of responsibility and what records are governed by either the Treaty of Rome or the ESCB statute”. In respect of part 2 of the request, the applicant stated that the Central Bank’s decision appeared to be at odds with how it had previously responded to a request for these records.
On 21 May 2024, the Central Bank affirmed its decision. Responding to some of the points raised by the applicant, the Central Bank said that article 339 of the Rome Treaty provided that professional secrecy obligations remained in place “even after their duties have ceased”. Furthermore, it said that there were no temporal limits contained in the exemption or exclusion provisions being relied upon in relation to the relevant records. It said that if the Central Bank was satisfied that the relevant exemption or exclusions provisions applied to the records (or parts thereof), there were no exceptions to these exemptions or exclusions, and that the Central Bank was not obliged to release those records (or parts thereof) after a particular period of time.
On 21 May 2024, the applicant applied to this Office for a review of the Central Bank’s decision. He said that he was seeking the information at issue for historical research purposes and was of the view that it was now part of the historical record and should be made available to researchers with legitimate historical interests in the subject matter.
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 Central Bank and the applicant, and to the correspondence set out above. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The applicant agreed to limit the scope of this review to only the records falling within part 1 of his request, and to omit from consideration any records/parts of records refused under sections 15(1)(d) or 37(1). This means that the review is concerned solely with whether the Central Bank was justified in refusing access, under section 42(i), 41(1) and/or 33(1) of the FOI Act, to records 5, 10 and 12 in full, and records 1, 4, 6, 7, 9 and 11 in part.
Having accepted the application for review, this Office asked the Central Bank to provide copies of the records at issue for the purpose of conducting the review, as is standard practice. The Central Bank provided a copy of the redacted records but refused to provide unredacted copies of the records, arguing that to do so would be a breach of its professional secrecy obligations under the Treaty on the Functioning of the EU (TFEU) and ESCB Statute, and a breach on the prohibition on disclosure under section 33AK of the Central Bank Act 1942. It said that the terms of the prohibition do not permit the Central Bank to disclose such confidential information to this Office and that contravention would be a criminal offence under section 33AK(8) of the Central Bank Act.
This Office does not accept that providing us with a copy of records, for the limited purpose of carrying out a review under section 22(2) of the FOI Act, would be a breach of such obligations. The Commissioner has broad powers to access records in order to fulfil his functions under the FOI Act, including section 45(3) of the FOI Act which provides that no enactment or rule of law prohibiting or restricting the disclosure of information shall preclude a person from furnishing the Commissioner with such records. Notwithstanding that, in the interests of expediency, we agreed to attend at the Central Bank’s offices and to inspect unredacted copies of the records there.
By way of background, the Central Bank said that the file sought by the applicant contained records relating to a crisis simulation exercise, which was established in 2008. It said that a high-level working group was formed from members of the Economic and Financial Committee of the European Union (EFC) to conduct the exercise. It said that many of the records held on this file were generated from this committee or through other European fora. However, it said that this exercise was ultimately postponed due to the actual financial crisis that occurred.
The Central Bank said that the file is held in its archive, in line with its archive policy which requires that certain files be held for a period of 30 years, after which the contents will be reviewed and considered whether they are suitable to be made available to the public. It said that this is consistent with the ECB, which also retains files for 30 years before they are reviewed. It said that this does not necessarily mean that they will be made publicly available after this timeframe has passed.
The specific records under consideration in this review consist of correspondence from Sveriges Riksbank (the Swedish central bank) and the Central Bank (records 1 and 4); an email from the Central Bank (record 5), a Memo to the governor of the Central Bank (record 6), a draft Memo to the Central Bank members of the EFC from Sveriges Riksbank (record 7), Draft Council conclusions from the EFC (record 9), a Governing Council Paper of the European Central Bank (record 10), EFC draft Mandate on the EU-wide Crisis Simulation Exercise in 2009 (record 11), and a Central Bank document relating to a Memorandum of Understanding on co-operation between the Financial Supervisory Authorities, Central Banks and Financial Ministers of the European Union on Cross-border Financial Stability (record 12). All records are dated between April and October 2008.
Section 42 provides that the FOI Act does not apply to various specified categories of records. There is no public interest test at section 42. If the record is captured by one or more of the categories of records described in section 42, that is the end of the matter.
Section 42(i) specifies that the FOI Act does not apply to a record held by the Central Bank of Ireland, the disclosure of which is prohibited by –
(i) the Rome Treaty,
(ii) the ESCB Statute, or
(iii) any of the Supervisory Directives,
within the meaning of the Central Bank Act 1942.
The Central Bank said that the disclosure of information covered by the obligation of professional secrecy is prohibited by both the Rome Treaty and the ESCB Statute in the following provisions:
• Article 339 of the Treaty of Rome (now the TFEU): “The members of the institutions of the Union, the members of committees, and the officials and other servants of the Union shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components”,
• Article 37.1 of the Statute of ESCB and of the ECB:“Members of the governing bodies and the staff of the ECB and the national central banks shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy” , and
• Article 10 of the Statute of ESCB establishes the Governing Council of the ECB and provides that it shall comprise of governors of the national central banks of the Member States whose currency is the euro (i.e. the Eurosystem). Accordingly, the Governor of the Central Bank of Ireland is a member of the Governing Council. Article 10.4 provides that:“The proceedings of the meetings shall be confidential. The Governing Council may decide to make the outcome of its deliberations public.”
The Central Bank said that the records contain significant amounts of confidential information known to the Central Bank due to its role in the ESCB (European System of Central Banks), the Governor’s role on the Governing Council of the ECB (European Central Bank) and the Central Bank’s participation on the EFC. It said that this information is covered by the obligation of professional secrecy.
Specifically, in relation to the crisis simulation exercise, it said that the EFC was mandated to initiate this exercise in 2008 and that a task force was formed comprising a sub-group of members from the EFC. It said that the records contain a roadmap of the exercise, relevant information on establishing the mandate and the high-level working group, and an overview of what the exercise would entail. It said that as the EFC is a committee of the European Union, this information, contained in records 1, 4, 5, 6, 7, 9, 11, 12, or parts thereof, is covered by the professional secrecy obligations of the EU.
In response to questions from this Office about the Central Bank’s understanding of its professional secrecy obligations, it said that its general position is that information covered by the obligation of professional secrecy is:
(1) confidential and not in the public domain, and
(2) either information –
a. about the business of any person or body that has come to a relevant person’s knowledge through the person’s office or employment within the Central Bank, or
b. concerning any matter arising in connection with the performance of the functions of the Bank or the exercise of its powers.
It said that the information that has been redacted or refused in this case is confidential, is not in the public domain and concerns matters arising in connection with the performance of the Central Bank’s functions. Specifically, it said that much of the documentation considered in confidential European fora, especially the Governing Council, along with other European committees, would fall within the professional secrecy definition. It noted that there may be instances where information is connected with the Central Bank’s functions and does not have the necessary quality of confidence about it, e.g. some information connected to its functions that it makes available on its website. It said, however, that this is not the case here and that the information that has been refused or redacted does contain that element of confidentiality.
In respect of the records refused in their entirety, the Central Bank said that none of the information contained in these records is in the public domain and that all of it is subject to professional secrecy obligations. Specifically, it said that record 5 is an email from the Central Bank to the ECB with comments/feedback on the parameters of the proposed exercise; record 10 is a paper presented at a meeting of the Governing Council of the ECB; and record 12 is a questions and answers document on a Memorandum of Understanding on co-operation between the Financial Supervisory Authorities, Central Banks and Financial Ministers of the EU on cross-border financial stability, that was sent to task force members but indicates that it is not to be published.
In respect of the records that were part-granted, it said that in processing the applicant’s request, the decision maker examined each record carefully and considered whether certain information could be partially released, given the passage of time since the records were generated. It said that usually the Central Bank would refuse in their entirety any records generated by another EU institution or forum, under section 42(i). However, it said that given the records relate to matters considered in 2008, it took a pragmatic approach in releasing what it considered to be non-confidential information within the records, and being information of a general nature. The Central Bank said that the redacted parts contained proposals and detailed specifications for the exercise which were drafted for consideration by the EFC, which is a confidential forum. It said that, having consulted with the relevant subject matter experts in the Central Bank, including current members of the EFC, it was satisfied that these parts of the records were considered still to be confidential and that their release could have an impact on future exercises of a similar nature which would be conducted under similar terms and conditions. Furthermore, it said that the terms and conditions surrounding the establishment of the agreement to undertake the simulation exercise would be considered confidential, as they could have a bearing on the operation or arrangements of future simulation exercises, in circumstances where it understands that there is minimal information available publicly in relation to the operation of such crisis simulation exercises.
As noted above, for records to be deemed outside the scope of the FOI Act by virtue of section 42, they must simply fall within the definition of records set out in the relevant sub-section. I acknowledge the applicant’s argument that the information is, at this point, historic and that he is seeking access to it for historic academic research. However, section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request. The applicant has also argued that, given the historic nature of the documents, they have no bearing on financial stability issues today, in Ireland or the Euro system more broadly. Whether the records contain information relevant to current financial stability issues, or indeed whether its release would lead to any kind of harm, is not something I can take into account under section 42(i); for the exemption to apply in this instance, the question is simply whether the information is covered by the obligation of professional secrecy.
I accept that the Central Bank is prohibited, by both the Rome Treaty / TFEU and the ESCB Statute, from disclosing information of the kind covered by the obligation of professional secrecy. Therefore, for records to be excluded from the FOI Act by section 42(i), such records must contain information covered by the obligation of professional secrecy.
The concept of professional secrecy is widely used in EU legislation, including in article 339 of the Rome Treaty /TFEU and article 37 of the Statute of ESCB and the ECB, both cited by the Central Bank above. However, there does not seem to be a clear definition of what professional secrecy actually means. It seems to me that the concept of professional secrecy is linked to the question as to whether the information is confidential. For example, article 53(1) of the Capital Requirement Directive (Directive 2013/36/EU as amended) states:
“Member States shall provide that all persons working for or who have worked for the competent authorities and auditors or experts acting on behalf of the competent authorities shall be bound by the obligation of professional secrecy. Confidential information which such persons, auditors or experts receive in the course of their duties may be disclosed only in summary or aggregate form, such that individual credit institutions cannot be identified, without prejudice to cases covered by criminal law.”
The question as to whether information is confidential is dependent on the facts of each case. According to the authors of the leading English text book on confidentiality , the following factors can be taken from case law to determine if material is confidential:
a) The test is objective and not subjective. This means that it is not relevant that the public authority thinks that the information is confidential. The test is whether a reasonable person in the position of the parties would regard the subject matter as confidential?
b) There must be some value to the party claiming confidentiality in the information being treated as confidential;
c) Reasonableness factors in the usage and practices in a particular sector;
d) Trivial or useless information will generally not be confidential. In any event, release of such information would not have an adverse effect on confidentially.
e) The age of the information is a relevant factor to consider when determining its confidentiality. This is done on a case by case basis. The older the information the less likely it is to be confidential.
f) If the information is in the public domain then it is not confidential. By that the authors mean that it is generally accessible by the public.
Having considered these factors, alongside the submissions made by the Central Bank,
it seems to me that its explanation of what it considers to be covered by the obligation of professional secrecy, is a reasonable one. From an examination of the records refused, I am satisfied that the information contained within them was obtained by the Central Bank in the performance of its European functions, specifically its participation in the EFC and the ESCB, and through the then Governor’s role on the Governing Council of the ECB. While at this point the information is more than 15 years old, I accept that it is not in the public domain, that it is not trivial and that it may be relevant in the event that a similar exercise is undertaken by the EFC in the future. I find it relevant that the Central Bank has released the parts of the records that it no longer considers to be confidential, which seems to me to be a reasonable approach, particularly given the age of the records. In these circumstances and for all of the above reasons, I am satisfied that the information refused remains confidential and is covered by the obligations of professional secrecy. I find, therefore, that disclosure of these records is prohibited by the Rome Treaty and the ESCB Statute, within the meaning of the Central Bank Act 1942, and that section 42(i) serves to exclude such records from the FOI Act.
I find therefore that the Central Bank was justified in its refusal to release the records at issue. As such, there is no need for me to go on to consider sections 33(1) or 41(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Central Bank’s decision. I find that the Central Bank was justified in refusing the records at issue under section 42(i) 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