Mahon seeks order to ban publishing of confidential material

The Mahon planning tribunal has asked the Supreme Court for an order banning publication by the media of certain "confidential" material circulated in private by the tribunal in advance of its public hearings.

Anyone who leaked or published such confidential material, whether or not they held an official position, could face prosecution under the Official Secrets Act, Paul O'Higgins SC, for the tribunal, said yesterday, but this was "not an effective remedy".

Mr O'Higgins said the tribunal's problems in relation to such matters could be resolved if statutory regulations governed them. He was not seeking to stop the media publishing information obtained outside the tribunal's own process, but was just seeking to protect the integrity of that process, he said.

The five-judge court has begun hearing an appeal by the tribunal against the High Court's refusal to grant a perpetual injunction restraining the Sunday Business Post and others from publishing material circulated in private by the tribunal. The hearing continues today.

The case arose after the paper published two articles in October 2004, headlined "Jim Kennedy's Pipe Dream" and "Fifty councillors named in new planning list", which, the tribunal claims, were based on extensive leaks of confidential tribunal documents.

The tribunal says that following the Supreme Court decision upholding a challenge by Cork property developer Owen O'Callaghan to the tribunal's failure to disclose to him all material relevant to allegations against him, it is obliged to circulate certain information to persons affected by such information. It contends that such information is confidential and cannot be disclosed prior to public hearings.

The publication of such material breaches people's entitlement to fair procedures before the tribunal and their rights to privacy and protection of their good name, Mr O'Higgins argued.

He suggested the risk of publication could inhibit people from making statements to the tribunal but he could not point to evidence showing any person had been so inhibited.

Mr O'Higgins was opening the tribunal's appeal against the High Court's refusal in October 2005 to grant an injunction preventing the Sunday Business Post from publishing documents which the tribunal had circulated to a number of people, with a direction that the material remain confidential in advance of a public hearing. However, publication remains restrained pending the outcome of the appeal.

In exchanges yesterday with the Supreme Court judges, Mr O'Higgins agreed that the tribunal had had issues with the Sunday Business Post in 2001 about the publication of information but had not taken court action against it. Mr Justice Adrian Hardiman remarked he had great difficulty with the failure by the tribunal to act previously.

Mr O'Higgins agreed that if he got such an order, there were only likely to be a small number of times when he would be able to make it effective. However, it was still important that such an order be made, he said.

There were three issues for the court to determine. The first was whether confidentiality was attached to statements made to the tribunal and to other materials circulated by the tribunal and, if so, what was the extent of that confidentiality.

The second was that while the confidentiality argued for might have other sources, it was essentially a public interest confidentiality. The third issue related to the tribunal's right to seek to enforce such confidentiality.

In light of those issues, the court must consider the appropriate balance between freedom of expression and the rights of persons to privacy and their good names, Mr O'Higgins continued.

He was not necessarily claiming confidentiality over documents already in the public domain but the context of the use of such documents was relevant. If the media procured documents which were not part of the tribunal's disclosure process, he could not claim a right to injunct them.

The Chief Justice, Mr Justice John Murray, said publication of material did not deprive a person of the right to fair procedures when appearing before the tribunal. The issue of a person's right to their good name was governed by the libel laws, he added.