The High Court has ordered the Minister for Defence to provide discovery and inspection of documents in a former Reserve Defence Forces member’s challenge to his discharge, while allowing a public interest privilege claim over limited intelligence material.
The judgment concerns document-access motions in Kealan Harrington’s judicial review, which challenges his 2021 discharge on grounds including alleged breaches of regulations and fair procedures. It does not decide the underlying challenge to the discharge.
Mr Justice Marguerite Bolger said Lieutenant Colonel Noel Maher had identified a January 2021 letter as the first time he sought permission to begin the discharge process. Maher said he could not locate its final version, while Brigadier General Brian Cleary said he could not recall receiving it. The court ordered discovery of all prior drafts and said an affidavit must explain the apparent absence of the letter and efforts to find copies or drafts.
The court also granted discovery of further documentation relating to the discharge process, including how the security assessment was considered. Cleary had said he had “sight” of the assessment and took it into account, but had not said he read it. The assessment was not provided to Harrington, who argued that it was central to his ability to answer the security concerns behind his discharge.
After examining the file over which the Minister claimed public interest privilege, the judge ordered inspection of several documents, including material relating to an October 2020 incident at Collins Barracks, a 12 January 2021 letter from Maher to GOC, and other personnel and vetting records. Some of those documents had already been exhibited in the proceedings, and the judge found no basis for privilege over them.
The judge upheld privilege over a document headed “Confidential” with reference number “1 BDE ----”. She ordered paragraph 5 of a confidential document dated 19 October 2020 to be redacted, but directed that the remainder and its attachment—downloaded from a publicly accessible website—be made available for inspection.
The applicant was awarded the costs of both motions, to be adjudicated upon if the parties cannot agree.