First Previous (PART 4 Other Powers Relating to Investigations) Next (PART 6 Miscellaneous Matters)

23 2004

Commissions of Investigation Act 2004

PART 5

Reports and Records of Commissions

Preparation and content of final reports.

32. —(1) On the conclusion of its investigation, a commission shall prepare a written report, based on the evidence received by it, setting out the facts it established in relation to the matters referred to it for investigation.

(2) If for any reason (including insufficient, conflicting or inconsistent evidence) a commission considers that the facts relating to a particular issue have not been established, the commission in its report—

(a) shall identify the issue, and

(b) may indicate its opinion as to the quality and weight of any evidence relating to the issue.

(3) A commission may omit from its report any information that identifies or that could reasonably be expected to lead to the identification of a person who gave evidence to the commission or any other person, if in its opinion—

(a) the context in which the person was identified has not been clearly established,

(b) disclosure of the information might prejudice any criminal proceedings that are pending or in progress,

(c) disclosure of the information would not be in the interests of the investigation or any subsequent inquiry, or

(d) it would not be in the person's interests to have his or her identity made public and the omission of the information would not be contrary to the interests of the investigation or any subsequent inquiry.

(4) The commission shall endeavour to submit the report to the specified Minister within the time frame specified under section 5 (2).

Interim reports.

33. —(1) If requested by the specified Minister, a commission shall make interim reports to him or her at the intervals stated in the request.

(2) The specified Minister may request an interim report on the general progress of a commission's investigation or on a particular aspect of the investigation.

(3) If a commission requests that the time frame for submitting its final report be revised under section 6 (6), the commission shall submit an interim report to the specified Minister with the request.

(4) Section 32 (2) and (3) applies also in respect of an interim report.

Draft reports to be sent to certain persons.

34. —(1) Before submitting the final or an interim report to the specified Minister, a commission shall send a draft of the report, or the relevant part of the draft report, to any person who is identified in or identifiable from the draft report.

(2) The draft report must be accompanied by a notice from the commission specifying the time allowed for making—

(a) submissions or requests to the commission under section 35 (1)(a) or 36(1), and

(b) applications to the Court under section 35 (1)(b).

(3) For the purposes of this section and section 35 , a person is identifiable from a draft report if the report contains information that could reasonably be expected to lead to the person's identification.

Amendment of draft reports for reasons relating to failure to observe fair procedures.

35. —(1) A person who receives a draft report or part of a draft report from a commission under section 34 and who believes that the commission has not observed fair procedures in relation to the person may, within the period specified by the commission—

(a) submit to the commission a written statement setting out the reasons for the belief and requesting the commission to review the draft in light of the statement, or

(b) apply to the Court for an order directing that the draft be amended before the submission of the report to the specified Minister.

(2) After considering a statement submitted under subsection (1)(a) and reviewing the draft report, the commission may—

(a) amend the report, including by omitting any part of the report based on evidence received without observing fair procedures,

(b) apply to the Court for directions, or

(c) submit the report to the specified Minister without making any amendments.

(3) After hearing an application under subsection (1)(b) or (2)(b), the Court may make any order or give any directions it thinks fit, including a direction to the commission to do one or more of the following:

(a) submit the draft report to the specified Minister without making any amendments;

(b) give a person specified by the Court an opportunity to give any evidence or make any submission that it considers should, in the interests of fair procedures, be received by the commission before the draft report is finalised;

(c) submit the draft report to the specified Minister after making such amendments as the Court may direct.

(4) Before submitting the report to the specified Minister, the commission shall give written notice of any amendments made under this section to any person who is identified in or identifiable from the report and who is affected by the amendments.

Amendment of draft reports to preserve confidentiality of sensitive commercial information.

36. —(1) A person who receives a draft of a report or part of a draft report from a commission under section 34 may, within a period specified by the commission, request the commission to omit from the report any information provided by the person to the commission—

(a) that the person considers to be commercially sensitive, and

(b) the disclosure of which is not, in the person's opinion, necessary for the purposes of the investigation.

(2) After considering the request, the commission shall review the draft report and may, if satisfied that the information is commercially sensitive and that its disclosure is not necessary for the purposes of the investigation, omit the information from the report.

(3) For the purposes of this section, information is commercially sensitive if its disclosure could reasonably be expected to—

(a) materially prejudice the commercial or industrial interests of the person who provided that information to the commission or of a group or class of persons to which that person belongs, or

(b) prejudice the competitive position of a person in the conduct of the person's business, profession or occupation.

Confidentiality of draft reports.

37. —(1) A person who receives a draft of a report or part of a draft report from a commission under section 34 shall not disclose its contents or divulge in any way that the draft or part of the draft has been sent to that person, except—

(a) with the prior written consent of the commission, or

(b) to the extent necessary for the purposes of an application to the Court.

(2) A person who contravenes subsection (1) is guilty of an offence.

Publication of final and interim reports.

38. —(1) Subject to subsection (2), the specified Minister—

(a) shall cause a commission's final report to be published as soon as possible after it is submitted to him or her, and

(b) may, at his or her discretion and following consultations with the chairperson or, if the commission consists of only one member, with the sole member, cause an interim report to be published, unless publication would hinder or impair the commission's investigation.

(2) If the specified Minister considers that the publication of the final report or an interim report of the commission might prejudice any criminal proceedings that are pending or in progress, he or she shall apply to the Court for directions concerning the publication of the report.

(3) Before determining an application under subsection (2) in respect of a report of a commission, the Court shall direct that notice be given to the following:

(a) the Attorney General;

(b) the Director of Public Prosecutions;

(c) a person who is a defendant in criminal proceedings relating to an act or omission that is mentioned in the report or that is related to any matter investigated by the commission and mentioned in the report.

(4) On an application under subsection (2), the Court may—

(a) receive submissions, and evidence tendered, by or on behalf of any person mentioned in subsection (3), and

(b) hear the application in private if the Court considers it appropriate to do so.

(5) If, after hearing the application, the Court considers that the publication of the report might prejudice any criminal proceedings, it may direct that the report or a specified part of it be not published—

(a) for a specified period, or

(b) until the Court otherwise directs.

Restriction of Data Protection Act 1988.

39. Section 4 of the Data Protection Act 1988 does not apply to personal data provided to a commission for as long as the data is in the custody of—

(a) the commission,

(b) the specified Minister after being deposited with him or her under section 43 (2),

(c) a tribunal of inquiry after being made available to it under section 45 , or

(d) a body after being transferred to it on the dissolution of a tribunal of inquiry to which the data was made available under section 45 .

Restriction of Freedom of Information Acts 1997 to 2003.

40. —(1) The Freedom of Information Acts 1997 to 2003 do not apply to a record relating to an investigation by a commission unless—

(a) the record was created before the making of the order establishing the commission, or

(b) the record relates to the expenses of the commission or the appointment of persons under section 7 or 8 or other matters concerning the general administration of the commission.

(2) Subsection (1) applies whether the record concerned is held by—

(a) the commission,

(b) the specified Minister after being deposited with him or her under section 43 (2),

(c) a tribunal of inquiry after being made available to it under section 45 , or

(d) a body after being transferred to it on the dissolution of a tribunal of inquiry to which the record was made available under section 45 .

(3) In this section, “record” has the same meaning as in the Freedom of Information Acts 1997 to 2003.

Availability of records for inspection by public under National Archives Act 1986.

41. —(1) Records of a commission that constitute Departmental records within the meaning of section 2(2) of the National Archives Act 1986 are, on the expiry of 30 years after the date of the commission's dissolution, deemed to have been prescribed under section 8(11) of that Act as a class of records to which a certificate granted under section 8(4) of that Act may relate.

(2) As soon as practicable after the date on which records of a commission are deemed to have been prescribed as described in subsection (1), an officer of a Department of State authorised for the purposes of section 8(4) of the National Archives Act 1986 shall consider whether, subject to any consent required under that section, the commission's records should be certified under that section.

(3) Subsections (1) and (2) apply whether the records concerned have been—

(a) deposited with the specified Minister under section 43 (2),

(b) made available to a tribunal of inquiry under section 45 , or

(c) transferred to a body on the dissolution of a tribunal of inquiry to which they were made available under section 45 .

(4) Subject to this section, the National Archives Act 1986 applies to records of a commission that constitute Departmental records within the meaning of section 2(2) of that Act.