The Information Commissioner, Mr Kevin Murphy, has recommended that the law under which the names of Ansbacher account holders are being withheld by the Government should be changed.
Mr Murphy argued in June that issues of privacy or prejudice to an investigation should be adjudicated on by him under the Freedom of Information Act, rather than dealt with under the Companies Act. Concern that the change would give rise to a large number of judicial reviews was not a proper reason for maintaining secrecy, he said.
Neither the Taoiseach, Mr Ahern, nor the Tanaiste, Ms Harney, referred to the Commissioner's representations during last month's controversy over the disclosure of the names of Ansbacher account holders in the Dail. Instead, secrecy was insisted upon under Section 21 of the Companies Act and pending a final report from three inspectors appointed by the High Court.
The Labour Party spokesman on finance, Mr Derek McDowell, said last night the Government should now change the law in line with the Commissioner's recommendation. This would allow Mr Murphy to make an independent decision on whether the names should be released under the Freedom of Information Act.
Contrary to the Government's assertion that secrecy in relation to the Ansbacher list was essential, Mr McDowell said, the informed view leaned towards disclosure in the public interest. The commissioner's view was that issues of privacy or prejudice to an investigation should be matters for independent adjudication by him and not a blanket ground for refusal to publish by the Government.
Mr Murphy's report undermined the Government's tenuous argument that any disclosure would necessarily prejudice an investigation, he said, and the Labour Party was now calling for a change in the Companies Bill at report stage so as to empower the Information Commissioner.
Earlier this year, the Department of Enterprise, Trade and Employment opposed changes in the Companies Act which would have given Mr Murphy overriding powers of disclosure under the Freedom of Information Act.
Observing that investigations under Section 19 were related to specific wrongdoing, the Department stated: "If such investigations proved the Minister's concerns to be unfounded, the making available of this information via the FOI Act would represent an unwarranted public intrusion into the company's private affairs which could benefit its competitors and adversely affect its own market position. If, on the other hand, such investigations proved to be well-founded, matters may require criminal investigation and public disclosure of the information involved could serve to compromise such an investigation . . .
"Any general provision allowing disclosure of Section 19 material would frustrate the purpose of the section and render it ineffective, as it would inevitably give rise to a large number of judicial review proceedings against the Minister."
In reply, the Information Commissioner said that while certain provisions were designed to protect investigations where wrongdoing or breaches of the law were alleged, the legal exemptions under the FOI Act were sufficiently strong to protect those records. Dealing specifically with Section 21 of the Companies Act, Mr Murphy said it prohibited disclosure of records unless that was required for specific purposes.
The Commissioner did not consider the Department's contention that a provision which allowed disclosure of information under the Companies Act would give rise to a large number of judicial reviews was a proper reason for the exclusion of his remit under the FOI Act.