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Senior Counsel’s opinion, for Village, affirms being a Minister does not exclude you from the obligations of the Official Secret Act

:           Ruadhán Mac Aodháin, Solicitor, Prospect Law

Re:       Whether the Official Secrets Act applies to Ministers and TDs?

Client:  Ormond Quay Publishing Limited

Date:   3rd November 2020

From:  Diarmuid Rossa Phelan SC

Thank you for your instructions of last night raising the above question to be answered by noon today. The short answer is that there is no exclusion in the Official Secrets Act, 1963, to the person prohibited from communicating official information by virtue of the person’s status simpliciter as Minister or member of the Oireachtas.

Whether the prohibition on the disclosure of official information falls within Section 4 of the Act applies depends on whether the information is “official information” within the meaning of Section 2(1) of the Act and if so whether it is excepted.

Official information includes a document 

  1. which is confidential or expressed to be confidential, and
    1. which is or has been in the possession custody or control of a holder of public office or to which the holder of public office has or had access, where such control or access is by virtue of the public office holder’s office.

Public office includes an office or employment which is wholly remunerated out of the Central Fund or out of moneys provided by the Oireachtas, but does not include membership of either House of the Oireachtas. Therefore information does not become official information by virtue of it being in the possession etc. of a member of the Oireachtas. However, official information does not cease to be official information solely by virtue of the fact that it has come into the possession custody or control of or accessed by a member of the Oireachtas, or indeed any other person who is not a holder of public office as defined by the Act.

If the information falls within the definition of official information, the prohibition on disclosure of official information applies to a person without qualification or exclusion de ratione personae. However the communication by any person may nonetheless be excepted from prohibition, not because of status for example as member of the Oireachtas or Minister, but if the disclosing person either

  1. is duly authorised to communicate the official information – “duly authorised” here means (S.4(4)) authorised by a Minister or State authority or by some person authorised in that behalf by a Minister or State authority to communicate the official information, or
  2. communicates the official information in the course of or in accordance with his or her duties as the holder of a public office (not including membership of the Oireachtas), or
  3. when it is his or her duty in the interest of the State to communicate it.