Newspaper says tribunal must prove files are confidential

An order restraining the media from publishing material circulated by the Mahon planning tribunal could mean there might never be publication of matters which are clearly in the public interest, the Supreme Court was told yesterday.

Eoin McCullough SC, for the Sunday Business Postnewspaper, said the tribunal should not be granted such an order unless it could prove the material in question was confidential and that it was against the public interest to publish it. The tribunal was not entitled to argue that all material circulated by it was confidential without proving that claim.

He said there was a possibility of a long delay between the circulation of information by the tribunal and its ultimate publication and this could be contrary to the public interest. It was also possible the material, while its publication was in the public interest, might never come into the public domain.

He also argued that, under the European Convention of Human Rights Act, every restriction on freedom of expression requires to be justified as being necessary in a democratic society and must also be proportionate.

He was making submissions during the continuing hearing of the tribunal's appeal against the High Court's refusal of October 2005 to grant an order against the Sunday Business Post and others restraining publication of any material circulated by the tribunal to persons prior to such material being ventilated in public hearings.

The two-day appeal concluded yesterday and the Chief Justice, Mr Justice John Murray, presiding over the five-judge court, said it was reserving its decision.

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

The tribunal says that following the Supreme Court's upholding of a challenge by Cork property developer Owen O'Callaghan to the tribunal's failure to disclose to him all material relevant to allegations made against him, it is obliged to circulate certain information to persons affected by such information.

It contends such information is confidential and cannot be disclosed prior to public hearings because that would deprive affected persons of fair procedures, their rights to privacy and protection of their good name.

Mr McCullough said only documents which were proved confidential could be protected by an injunction and it was up to the tribunal to prove confidentiality of such material. There was an astonishing failure by the tribunal to prove the documents in question were confidential although it claimed breach of confidence.

The tribunal must also show that it is in the public interest that such documents must not be published, he argued. Any restriction against publication should be proportionate.

The tribunal had a policy of asserting that all documents it circulated were confidential but that would give it a right not available to parties in criminal or civil proceedings.

In reply to Mr Justice Adrian Hardiman, Mr McCullough said a statement to a garda or other public authority in pursuit of a public duty was not necessarily confidential. A public authority could not itself impose confidentiality, he argued. Outsiders were not subject to the same considerations as gardaí in such circumstances.

Mr Justice Hardiman said that subject to the law on defamation and contempt, there was no restraint on the media publishing allegations. What was at issue here was the tribunal's attempt to stop the media publishing leaked material including very grave allegations against third parties.