The Supreme Court has upheld an order requiring the Revenue Commissioners to identify documents relevant to RTÉ's defence of a defamation action arising from a 2001 Prime Time programme about drug trafficking.
Edward Keating sued RTÉ after the 19 July 2001 broadcast. He alleged that the programme identified him despite RTÉ knowing that his involvement in drug-importation activity had been under Garda direction while he acted as an informer. RTÉ admitted publishing several of the statements complained of but relied substantially on a defence of justification, maintaining that relevant allegations were true.
RTÉ sought third-party discovery from An Garda Síochána and Revenue's Customs and Excise branch. It requested documents concerning Keating's involvement in importing controlled drugs and, specifically from Revenue, material relating to his questioning at Ringaskiddy, Co Cork, on 3 June 1998.
The High Court ordered discovery, limited to documents created before the broadcast. Revenue appealed. It argued that disclosure could damage confidential intelligence-sharing, drug enforcement and public interests, and that privilege would likely prevent production in any event.
Mr Justice McKechnie rejected the appeal. He held that only the courts can decide whether the public interest in withholding documents outweighs the public interest in the administration of justice. Revenue could not determine that issue for itself.
The court also rejected the argument that an anticipated privilege claim made discovery pointless. Privilege normally arises after relevant documents have been identified in an affidavit of discovery. Revenue had not shown that every possible privilege claim would inevitably succeed.
The requested documents were held to be relevant to the central dispute: whether Keating's admitted involvement in criminal activity was always under Garda direction or whether he had acted independently for personal or other gain. They were also necessary to the fair disposal of RTÉ's justification defence.
The appeal was dismissed. The judgment does not order automatic production of privileged material; any privilege claims can still be determined through the normal court process.