The Official Secrets Act 1963 makes it a criminal offence for persons who hold public office to disclose secret official information, with the definitions as to who the law applies to, and what information the law applies to, being contained in the act.
At the very outset the Act states that the definition of “public office” does not include membership of either House of the Oireachtas, meaning it does not apply to TDs or senators.
Public office is defined for the purposes of the act as meaning “an office or employment which is wholly remunerated out of the Central Fund or out of moneys provided by the Oireachtas, or an appointment to, or employment under, any commission, committee or tribunal set up by the Government or a Minister for the purposes of any inquiry, but does not include membership of either House of the Oireachtas”.
The meaning of official information is likewise defined at the outset of the Act, so as to make it clear what types of information the act seeks to encompass.
Official information is defined as including “secret official” information or documents, or information or documents “expressed to be” secret or confidential.
The definition reads as follows: official information “means any secret official code, word or password, and any sketch, plan, model, article, note, document or information which is secret or confidential or is expressed to be either and which is or has been in the possession, custody or control of a holder of a public office, or to which he has or had access, by virtue of his office, and includes information recorded by film or magnetic tape or by any other recording medium”.
Section four of the Act says that a “person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it”.
“Duly authorised” is defined as meaning that permission has been given by a minister or a State authority or person that has been authorised by a minister or a State authority.
If a person is accused of having breached the Act by disclosing what should be confidential information, then “it shall be a good defence” to show that the communication was in fact authorised by a government minister or a State authority, according to the Act.
There is a separate piece of legislation that makes it an office for public office holders to give confidential information to others for corrupt reasons.
Section 7 (2) of the Criminal Justice (Corruption Offences) Act 2018 makes it an offence for an official to “use confidential information” for corrupt reasons.
“An Irish official who uses confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person shall be guilty of an offence.”
An Irish official for the purposes of this Act includes members of the Dáil and Seanad.
The code of conduct for Dáil members, which does not include office-holders, forbids the use of confidential information for personal gain, while the code of conduct for office-holders says they should act in furtherance of the public interest, and respect confidences entrusted to them in the course of their official duties.