Security & Disclosure
Law Enforcement,
There are specific arrangements for the disclosure of information about wrongdoing, other than a disclosure of information about wrongdoing, that might reasonably be expected to facilitate the commission of an offence or to prejudice or impair—
- the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for any of those matters,
- the enforcement or administration of, or compliance with, any law,
- lawful methods, systems, plans or procedures employed for ensuring the safety of the public or the safety or security of persons or property,
- the fairness of proceedings before a court or tribunal,
- the security of a relevant institution, or
- the security of any system of communications of the Garda Síochána, the Defence Forces or a relevant institution.
A “relevant institution” means—
- a prisons
- a military prison or detention barrack
- Patrick’s Institution,
- a children detention school
- a remand centre designated
Disclosure Procedure
The Disclosure must be to the prescribed person or body. If a person has been prescribed in relation to the information about such wrongdoing, the disclosure is not a protected disclosure unless—
- it is made in the manner specified or
- if it is taxpayer information, it is made in the manner specified to the Comptroller and Auditor General, or
- in any other case, it is made in the manner specified to a member of Dáil Éireann or Seanad Éireann.
The conditions are—
- that the person by whom the disclosure was made has made a disclosure of substantially the same information about wrongdoing to the prescribed person,
- that a reasonable period for taking action in relation to that disclosure has passed, and
- that, having notified the person prescribed in relation to the information about wrongdoing, the person by whom that disclosure was made reasonably believes that no action has been taken in relation to that disclosure or that any action so taken was inadequate.
The 2022 Act repeals the restriction on public disclosure of taxpayer information where such information concerns a breach of the EU laws within the material scope of the EU Directive on protected disclosure, as required it.
Where No Prescribed Recipient
If no person has been prescribed in relation to the information about wrongdoing, the disclosure is not a protected disclosure unless—
- it is made in the manner specified or
- it is made in the manner specified when conditions are met to a member of Dáil Éireann or Seanad Éireann.
The condition referred to is that the disclosure is to the effect that—
- an investigation undertaken for the purpose of the enforcement of any law, or anything done in the course of such an investigation, or anything done for the purpose of the prevention or detection of any offence, the apprehension of an offender or the prosecution of an offence,
is not authorised by law or contravenes any law.
Security, Defence, International Relations and Intelligence
There are provisions for disclosure of information if it might reasonably be expected to affect adversely—
- the security of the State,
- the defence of the State, or
- the international relations of the State,
or to reveal, or lead to the revelation of, the identity of a person who has given information in confidence to a public body in relation to the enforcement or administration of the law or any other source of such information given in confidence.
These provisions apply to a disclosure of information—
- which was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State,
- which relates to the tactics, strategy or operations of the Defence Forces in or outside the State, or the detection, prevention or suppression of activities calculated or tending to undermine the public order or the authority of the State (which expression has the same meaning as in section 2 of the Offences Against the State Act 1939),
- which consists of a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government,
- which consists of a communication between a Minister of the Government and a diplomatic mission or consular post of the State,
- which was communicated in confidence to any person in or outside the State from any person in or outside the State, relates to a matter referred to in subsection (1) or to the protection of human rights and was expressed by the latter person to be confidential or to be communicated in confidence,
- which was communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body, or
- which is contained in a record of an organisation, organ, institution or body referred to in paragraph (f) and the disclosure of which is prohibited by the organisation, organ, institution or body.
A disclosure of such information is not a protected disclosure unless—
- it is made in the manner specified or
- it is made in the manner specified in section 10 to the Disclosures Recipient.
Garda Síochána
Where a disclosure relating to the Garda Síochána is disclosed to the Ombudsman Commission as a prescribed person in respect of disclosures so relating, it may, if it appears to it desirable in the public interest to do so, investigate the disclosure, even if the worker (within the meaning of that Act) making the disclosure is a member of the Garda Síochána.
The provisions relating to investigations and reports apply with the necessary modifications in relation to a relevant wrongdoing to which a disclosure relates as though it were the subject of a statutory complaint,
Defence Forces
If the complaint is that a person has penalised or threatened penalisation (within the meaning of the Protected Disclosures Act 2014) against, or caused or permitted any other person to penalise or threaten penalisation against, the complainant for having made a protected disclosure (within the meaning of that Act), the Ombudsman—
- is not prevented from investigating any action that is the subject of the complaint, and
- may not decide not to carry out, and may not decide to discontinue, an investigation into any such action,
because no complaint has been made under the Defence Act.
This does not affect any right to complain, under section 114 of the Defence Act 1954, that a person has penalised or threatened penalisation against, or caused or permitted any other person to penalise or threaten penalisation against, the complainant for having made a protected disclosure or to submit any grievance in relation to such a complaint in accordance with regulations.
Internal Procedures for Public Bodies
Every public body is to establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures.
The public body shall provide to workers employed by the body written information relating to the procedures established and maintained. The Minister may issue guidance for the purpose of assisting public bodies in the performance of their functions and may from time to time revise or re-issue it. Public bodies shall have regard to any guidance issued.
The Minister can issued guidance to public bodies not only in respect of the handling of disclosures to a worker’ employer but also in respect of the handling of disclosures made to prescribed persons, the Protected Disclosures Commissioner, suitable persons and Ministers.