The High Court has permitted the Protected Disclosures Commissioner to rely on anonymised material from other whistleblowers in judicial review proceedings concerning the handling of a protected disclosure linked to the Department of Defence.
Ms Justice Nuala Jackson ruled that the Commissioner could exhibit redacted versions of related disclosures when filing his defence to proceedings brought by Yvonne O’Rourke. The material cannot, however, be disclosed immediately. The other reporting persons must first be notified and given an opportunity to object.
Ms O’Rourke’s substantive case challenges the Commissioner’s decision to transmit her protected disclosure to the Secretary General of the Department of Defence. She alleges that she had expressly said the Secretary General’s office was implicated in the wrongdoing and should not receive the report. She argues that the Commissioner should instead have retained the disclosure for assessment and follow-up himself.
The Commissioner says her report was one of eight disclosures received from seven people over a short period in January 2024. According to his evidence, the reports contained overlapping allegations concerning the Defence Forces, Department of Defence and Minister for Defence, including passages described as template or boilerplate language.
The Commissioner argued that the court hearing the judicial review should understand that wider context because the reports were considered both individually and collectively when recipients were selected.
The difficulty was confidentiality. Section 16 of the Protected Disclosures Act 2014 generally prohibits disclosure of information capable of identifying a reporting person. It nevertheless permits disclosure where necessary and proportionate in judicial proceedings or otherwise required by law.
Ms Justice Jackson held that those tests were met. She approved the Commissioner’s proposed anonymisation, subject to several additional redactions made by the court.
Before the documents can be used, each affected reporting person must receive the proposed material, an explanation for its intended use and the judgment. They will then have 21 days to apply to the court. Costs were reserved.