IBRC probe unsure if it can overrule a claim of confidentiality on deals

The inquiry examining transactions by IBRC has said its hands are tied in deciding whether to overrule a claim of confidentiality over 200,000 documents received on debt write-offs.

The inquiry has declared it would face a legal challenge if it decided the issue of confidentiality was outweighed by public interest when it comes to circulating documents about IBRC deals.

The legal considerations are contained in a 77-page document released by Judge Brian Cregan, the chairman of the commission of investigation examining up to 38 deals done by IBRC.

The inquiry has come to a halt after Judge Cregan last week told the Government the investigation, because of issues of confidentiality and privilege, could not proceed. The inquiry yesterday published its consideration of those issues.

Judge Cregan outlined how IBRC’s special liquidators were, while releasing documents to him, refusing to allow them to be part of evidence in the probe. Liquidators KPMG had told the inquiry on August 12 initially last that they could not hand over the documents. They eventually on October 1 gave a four-page summary of 38 IBRC transactions involved, after being directed to by the inquiry.

The judge’s summary says that in total, some 200,000 documents relate to the write-offs which are subject to the investigation. Of these, 186,498 pages in 276 lever arch files it received relate to Siteserv.

This is the focus of the inquiry, after concerns about the Siteserv sale originally sparked questions about IBRC’s deals. The construction support company was sold by IBRC to businessman Denis O’Brien at a loss of €119m to the State.

Denis O’Brien

Liquidators KPMG, specifically Mr Kieran Wallace, have claimed they are tied to banker-customer confidentiality clauses as well as privileged legal advice. The liquidator is refusing to allow documents to be shared or used in evidence by the inquiry for these reasons.

The summary details a series of exchanges between the judge and the special liquidators over whether the documents can be used in evidence or shared. The liquidators argued that, under the commission of investigations legislation established in 2004, that Judge Cregan’s had no powers to “compel IBRC to disclose the documents or to hold that the public interest in disclosure outweighed the private interest in confidentiality.”

Judge Cregan determined that, in some cases, the courts had ruled that the public interest outweighed concerns about customer or banking confidentiality.

He notes that the inquiries legislation allows the investigation itself to decide whether privilege or confidentiality applies to documents. But he notes that tribunals had the power to decide before on this matter and not a commission, which has restricted powers under current legislation.

He concludes: “Does the Commission have the express legislative power to balance the private and public interest in confidentiality with the public interest in disclosure and to hold that the public interest in disclosure should prevail? The answer to that question, in the view of the Commission, is also no.”

Judge Cregan also notes that the Department of Finance had claimed that the documents it submitted were also confidential.

The Government has indicated it will decide, possibly as early as next week, on how to solve the legal impasse so the inquiry can continue its work.