The High Court has ordered State authorities to provide revised discovery in a civil case brought by Noel O’Connor, directing that selected documents be disclosed with redactions while upholding privilege over other records.
The ruling, delivered by Ms Justice Baker on 9 November 2016, concerned a challenge to claims of public interest privilege over documents already discovered. The defendants said disclosure of some records risked lives and operational security. The court considered 28 documents or classes of documents, alongside redactions in other material.
O’Connor claims that in July 1999 he agreed to act as a garda informant concerning people suspected of drug trafficking. He says the Garda authorities undertook to protect his safety and identity and to shield him from prosecution in Ireland or abroad. His claim arises after his detention in France in August 2000 and his conviction and sentence there for drug trafficking offences. He alleges the first defendant failed to take agreed or reasonable steps to protect him, including intervening with French authorities. These are claims in the underlying proceedings, not findings made in this ruling.
The first defendant did not deny that O’Connor had performed some surveillance or information-providing role, or that he received payments for information. The defendants nevertheless denied the alleged agreement. Justice Baker said the State bodies had to establish a genuine public interest in withholding each document, and balanced that interest against the need for the administration of justice.
The judge ordered disclosure of internal memoranda about payments to informants, with names, payment amounts, cities of operation and a project name removed. She also directed disclosure, subject to specified redactions, of records concerning arrests in France, requests for mutual assistance and rogatory requests. Names of unrelated people, contact details, vehicle and location information were among the details to be withheld. Names of investigating gardaí and foreign officers were generally not to be redacted where they could assist the plaintiff in preparing his case.
Privilege was upheld for two witness statements, one because it was not probative and another because of a safety risk, and for a garda statement containing sensitive operational material with limited probative value. The court also upheld legal privilege over advice from the Office of the Attorney General and a separate document marked “legal privilege”. A Department of Justice request containing information about unrelated people and activity was also held privileged.
The judge approved many redactions protecting third parties and civil servants, but said the names of gardaí involved in the investigation should not be withheld in relevant documents. She directed the State authorities to furnish revised affidavits of discovery reflecting the ruling. The decision addressed discovery only; it did not determine liability or the merits of O’Connor’s claim.