The High Court has refused to order disclosure of the private archive assembled by the MacEntee Commission during its investigation into aspects of the 1974 Dublin-Monaghan bombings.
Martha O’Neill, Elizabeth O’Brien and Frank Massey brought proceedings seeking declarations that the State was obliged under the Constitution and the European Convention on Human Rights to carry out a further investigation or public inquiry into the deaths of their relatives in the bombings of 17 May 1974.
The relatives sought discovery of the entire archive of the MacEntee Commission. That inquiry, led by Patrick MacEntee SC, had examined why the Garda investigation was wound down in 1974, why particular leads were not pursued and what happened to missing documentation. Its final report was delivered in March 2007.
The Master of the High Court ordered the State in May 2008 to make discovery of the archive. The State appealed.
Mr Justice Roderick Murphy held that the underlying proceedings raised a legal question: whether the State now has a duty to carry out a further investigation. He found that requiring disclosure of the entire MacEntee archive was neither relevant nor necessary to deciding that issue and would be disproportionate. The plaintiffs had not narrowed their request to specific categories of documents connected with particular issues in the case.
The court also accepted a separate State argument based on statutory privilege. Evidence to a commission of investigation is generally given in private, and the 2004 Act restricts disclosure of documents produced during such an inquiry.
The judge held that this statutory protection applied to the MacEntee archive and could be upheld without examining each document individually. He also rejected the relatives’ request that the State at least list every document and specify privilege claims one by one, finding that this would dilute confidentiality assurances given to those who supplied information.
The State’s appeal was therefore allowed and the discovery order was overturned.