The High Court has ordered the disclosure of 17 documents after finding that the State had not established public interest privilege over them in a discovery dispute in a serving Garda’s personal injuries action. It upheld claims of legal advice and litigation privilege over 72 other documents, which the plaintiff is not entitled to inspect.
The judgment, delivered by Mr Justice Jordan on 19 May 2023, concerns a motion by Keith Harrison for inspection of documents held by the defendants: the Garda Commissioner, the Minister for Justice and Equality, Ireland and the Attorney General. The underlying action, issued in March 2015, seeks damages for alleged negligence, breach of duty, bullying, harassment and other claims relating to Harrison’s employment as a Garda. Those claims were not decided in this judgment.
A 2017 discovery order covered, among other material, employment records, complaints, disciplinary matters, PULSE entries and protected disclosure procedures. The defendants’ discovery affidavit listed 87 documents over which privilege was claimed. The dispute before the court concerned whether the descriptions were adequate and whether the different claims of privilege were justified.
The court found the descriptions adequate, including after a supplemental affidavit. It reviewed the documents individually. Legal advice privilege was upheld for items 1 to 14, which included correspondence involving An Garda Síochána, State Solicitors and the Office of the Director of Public Prosecutions, as well as internal correspondence for the Garda’s Legal Affairs section. Litigation privilege was upheld for items 15 to 72 because they were created after the claim was notified or proceedings began and formed part of preparing for or defending litigation.
The court rejected public interest privilege for items 73 to 89. It found no valid basis to withhold PULSE printouts numbered 76 to 87, concluding that the material did not establish confidential intelligence and that disclosure was not shown to reveal crime detection or investigation methods. It also rejected the claim over items 73 and 74, finding nothing in the documents or submissions that justified withholding them.
The court separately examined the more substantial intelligence correspondence in item 75. It said the intelligence source was not identified and the evidence did not establish that disclosure would assist criminals. The material included dated and uncorroborated intelligence; the court said potential embarrassment to An Garda Síochána would not justify privilege. It also ruled that two letters mistakenly placed at tab 64 should have been listed as items 88 and 89, and that the privilege claim over them was not made out.
The order was limited to access to the documents: Harrison is entitled to sight of items 73 to 89, while items 1 to 72 remain protected. The judgment did not determine the merits of the underlying personal injuries action.