The president of the High Court will rule later whether the first interim report of the inspectors investigating Independent News & Media can, at this stage, be disclosed to INM, the Central Bank, or any other party.
The inspectors were appointed by Mr Justice Peter Kelly last September and their first report was provided to him last month.
The Director of Corporate Enforcement (ODCE) is the only entity with a statutory entitlement to see it. The court has discretion whether anyone else can access it.
When applications for access came before the judge today, Neil Steen SC, for the ODCE, supported by inspectors Sean Gillane and Richard Fleck, objected to INM, the Central Bank, various journalists, former INM executives, or any other parties, being provided with the report at this stage.
Mr Gillane said the inspectors’ particular concern was that a reference in the report to evidential matters should not be disclosed.
Among those seeking access were former INM chairman Leslie Buckley, former INM CEO Robert Pitt, journalist Maeve Sheehan and a number of companies and individuals whom the ODCE is concerned may have been involved in the removal and interrogation of data from INM in 2014.
In reserving judgment, Mr Justice Kelly said this was the first time objections had been raised concerning an application under Section 759 of the Companies Act for access to an interim report of court-appointed inspectors and he wanted to consider his ruling.
Earlier, Mr Steen argued the interim report contained no conclusions or findings and its release could adversely affect the progress and conduct of the investigation.
Mr Gillane said the report essentially set out the procedures to be adopted in the investigation and progress made to date but also made limited reference to evidential matters which the inspectors did not wish published. He agreed with the judge it was more than an updated progress report.
For reasons including to ensure the fair and effective conduct of the investigation, and to avoid reputational damage at this interim stage when the investigation has not concluded and no findings have been made, he agreed with the ODCE the report should not be made available to other entities now.
Lawyers for INM and the various other parties maintained they were entitled to see the report insofar as it related to them and, if the court considered necessary, in redacted form. They also said they would offer confidentiality undertakings.
Shane Murphy SC, for INM, argued that fair procedures and legal precedent require that the company, which is subject of the inspectors' investigation and is fully co-operating with it, be provided with the report. The material about which the inspectors are concerned could be redacted and there was no complaint INM has violated confidentiality, he said.
We are not some form of interested observer.
Alan Marshall, a former non-executive director of INM, also wanted access to the report, he said.
Counsel for the Central Bank sought access only to those sections of the report relevant to the bank’s statutory functions and argued the Bank is in a different position from the other applicants for access.
Joe Jeffers BL, for former INM CEO Vincent Crowley and public relations executive Rory Godson, said they should be permitted see those parts of the report concerning them.
Counsel for Mr Buckley said his client is very concerned with the outcome of the report, whether interim or final, and would give confidentiality undertakings.
Paul McGarry, for various companies and individuals suspected to be involved in the data removal and interrogation, said they are “more than interested observers”. The ODCE had not shown a specific reason why disclosure of the report would inhibit the inspectors’ work, he argued.
Helen Callanan SC, for Ms Sheehan, said, as a current employee of INM, she is in an unusual position as she has an ongoing relationship but wants to protect her rights and the extent to which they may or may not have been breached.
Ms Sheehan is “beyond reproach”, her involvement in this matter is “entirely involuntary” and she was entitled to be made aware of any references to conduct affecting her, counsel said.
Tom Mallon BL, for Mr Pitt, said his client was “at the core of the matter” as he had made protected disclosures. Mr Pitt believed his evidence might be challenged by others, perhaps Mr Buckley, and his conduct might thus fall into question and should be permitted see any relevant sections, he said.
Counsel for Joe Webb, former CEO of INM Ireland and one of the 19 persons subject of the alleged data breach, also sought access.
The inspectors’ appointment last September arose from the ODCE’s year-long investigation into matters raised in protected disclosures made in 2016 and 2017 by Mr Pitt and former INM Chief Financial Officer Mr Preston.