Dáil Éireann Debate, Wednesday - 6 December 2017
153. Deputy Jim O'Callaghan asked the Minister for Justice and Equality if his Department has sworn an affidavit of discovery for the purpose of the disclosures tribunal; if so, if that affidavit contains a claim of legal professional privilege over documents generated in 2014, 2015 and 2016; and if he will make a statement on the matter. [52136/17]
Amharc ar fhreagraDiscovery orders were issued by the Tribunal to my Department in February, April and September. These orders were complied with fully and the relevant documents were forwarded to the Tribunal in February, May and September 2017. In the course of making discovery, affidavits of discovery were requested by the Tribunal in respect of two of those orders, those in April and September. An official of my Department swore three affidavits in respect of these two discovery orders.
The discovery orders concerned records of the O’Higgins Commission of Investigation; documents related to two cases which had been considered by the Independent Review Mechanism; a copy of a representation to the then Minister which referenced Sergeant McCabe; a report of a GSOC investigation into a complaint that a Garda investigation of an alleged serious assault was not properly carried out; and records related to the allegation of contacts between the Gardaí and TUSLA in relation to Garda Keith Harrison.
The Department has also made voluntary disclosure of other matters including three protected disclosures, reports from the Garda Commissioner under section 41 of the Garda Síochána Act and, most recently, the two email threads that were uncovered following a trawl of documents in the Department. In acknowledging receipt of the emails, the Tribunal made reference to my Department's already extensive discovery which has allowed the Tribunal to place the current documents in context.
When the Disclosures Tribunal was established, my Department notified the Tribunal of the existence of a number of files which might come within the terms of reference of the Tribunal. These included some files relating to on-going civil litigation, in relation to which my Department had been advised that legal professional privilege applied. The Tribunal did not request discovery of these files.
In an affidavit of discovery which related, in part, to records of the O'Higgins Commission of Investigation, my Department did claim legal professional privilege over 2 documents, one of which consisted of a memo from the Commission's senior counsel to the Commission and which contained legal advice. The second was a draft letter from the solicitor to the Commission for issue to one of the parties to the Commission. My Department was advised that these documents did attract legal professional privilege. In line with the standard format of an affidavit of discovery, the Tribunal was provided with sufficient information to identify the type of records in question. The Tribunal did not raise any issue with the affidavit.
I should clarify that no officials of my Department (nor, indeed, my predecessor) have accessed the records of the O'Higgins Commission of Investigation in view of the statutory necessity to maintain confidentiality of those records. Therefore, to comply with the Tribunal's discovery orders my Department engaged documentary counsel to examine those records and to identify the relevant records for the purpose of the discovery order.
