The publication by the media of "confidential" information circulated by the Mahon planning tribunal infringes the right to freedom of expression by citizens to the tribunal, the Supreme Court was told.
Counsel for the inquiry Paul O'Higgins SC argued in closing submissions that if citizens could not rely on confidentiality when giving information to a tribunal, their right to freedom of expression was affected. The confidentiality of all information circulated by the tribunal derived from the fact it was gathered by the tribunal for the purpose of its inquiries.
The tribunal was obliged to formulate its procedures in accordance with the constitutional rights to respect for privacy and one's good name, he said. The structure of tribunals was erected to bring into the public domain matters which might not otherwise emerge and effective procedures could not be generated without having structures which respected citizens' rights.
Encroachment on the right to privacy must only be for the purpose of the inquiry and to the extent necessary, Mr O'Higgins added. That obligation extended into perpetuity.
When the tribunal circulated documents in line with its constitutional obligations, anyone who took and published those documents was also bound by the duty of confidentiality, he said.
When Mr Justice Adrian Hardiman said the media had made clear for some years that it intended to publish any information relating to the tribunal's work which it could get its hands on and which it considered newsworthy and the tribunal had done nothing about it, Mr O'Higgins said the tribunal had not done nothing.
He accepted it had not previously sought such an order restraining publication of leaked material but urged that such a failure should not prevent the court dealing with the matter on its merits as the tribunal prepared for future lengthy investigations.