The High Court has ordered two Irish Timesjournalists to appear before the Mahon tribunal to disclose the source of an article about financial payments to Taoiseach Bertie Ahern.
It also warned the journalists that they may be found in contempt of court if they fail to do so.
The Planning tribunal sought the order against Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena under Section 4 of the Tribunal of Inquiry (Evidence) (Amendment) Act 1997, which permits the tribunal to seek the assistance of the High Court where a person has failed to comply with its orders.
The proceedings arise from publication in The Irish Timeson September 21st, 2006, of an article written by Mr Keena and entitled: "Tribunal examines payments to Taoiseach".
The article was based on information contained in a letter from the tribunal to businessman David McKenna sent on June 29th, 2006. Mr McKenna is one of a group of 12 businessmen who made payments totalling £38,500 to Mr Ahern in 1993 and 1994. The letter was sent to Mr Keena.
The tribunal is trying to find the source of the information.
Both journalists were summoned before the tribunal on September 26th but refused to provide documents or answer questions that might identify the source. Ms Kennedy told the tribunal the documents had been destroyed. She also defended publication of the article, arguing that it concerned a matter of "legitimate and significant public interest".
In February, the tribunal began court proceedings.
In a 37-page ruling today, the three-judge High Court found in favour of the tribunal and ordered Ms Kennedy and Mr Keena to comply with an order to appear in Dublin Castle to answer questions about the source of the information.
It also warned that failure to comply with a High Court order "can amount to a contempt of court".
The ruling was delivered by president of the High Court, Mr Justice Richard Johnson, who heard the case along with Mr Justice Peter Kelly and Mr Justice Iarfhlaith O'Neill for four days last July.
It said the court was satisfied that there is "no doubt" that the material sent to The Irish Timeswas "leaked" and that the tribunal "did not in any way" authorise the release.
It noted that the tribunal, which relied on confidentiality to conduct its work, contended that the restriction of freedom of expression was "necessary in a democratic society . . . for preventing the disclosure of information received in confidence".
"We are satisfied . . . that the documents had about them the attributes of confidentiality and the tribunal was entitled to impose an obligation of confidentiality in respect of them on the designated recipient of the document and all others who came into possession of it or them," the ruling said.
The court said the tribunal relies on public confidence to conduct its work. "Thus we are satisfied that the disclosure or leaking of this material as occurred here of itself inflicts sufficient damage on the capacity of the tribunal to properly function as to warrant the upholding and enforcement of the confidentiality asserted by the tribunal."
While accepting that a "free press" was an essential organ in a democratic society, it said "journalists are not above the law".
"Neither are they entitled to usurp the function of the court as happened here."
The court described the destruction of the documents as "reprehensible" but noted that it could not impose any sanction as the matter had not been brought before the court as a contempt issue.
"Nevertheless, the destruction of these documents by the defendants is a relevant consideration to which great weight must be given in striking the correct balance between the rights and interests at issue on this application," it said.
The ruling noted that Ms Kennedy and Mr Keena had argued that any risk of disclosure of the identity of sources gave rise to a "chilling" effect so far as the flow of information to newspapers was concerned. They also argued that if they were seen to be willing to disclose their sources, their reputations would be destroyed and their capacity to work as journalists would be "grossly impaired or utterly destroyed".
However, the court found that the source in this case could not be identified by examining the original documents, as they had been destroyed. "The only additional information that can be revealed by the defendants is whether or not the version or copy of the letter seen by them had the tribunal's letter heading on it or whether it was signed," it said.
"In all probability, having regard to the fact that the documents are now destroyed, the most that can be achieved by way of answers to questions proposed to be asked by the tribunal of the defendants is to indicate that as a matter of probability the tribunal was not the source of the leak.
"Beyond that the source will remain, as of course the source always intended, shrouded in impenetrable mystery with its anonymity safely beyond the reach of forensic inquiry," the court ruled.
It conceded that although there is "little or no risk" that the source will be identified by questioning at the tribunal, the establishment that the tribunal itself was not the source of the leak would be "a real benefit" to its work.
The court therefore found that the journalists' privilege against disclosure of sources is "overwhelmingly outweighed by the pressing social need to preserve public confidence in the tribunal and as there is no other means by which this can be done other than the enquiry undertaken by the tribunal, we are of opinion that the test 'necessary in a democratic society' is satisfied."
Speaking outside the court, Ms Kennedy insisted the publication of the story was in the public interest. "The judgment in these circumstances is disappointing," she added.
