This is the full text of the tribunal's ruling, delivered by Judge Alan Mahon, in relation to Geraldine Kennedy and Colm Keena:
This ruling arises in the following circumstances: On the 29th June 2006 the tribunal wrote a letter to Mr David McKenna seeking his assistance in connection with a payment of money by him to Mr Bertie Ahern TD in December 1993. Mr McKenna had been named as one of a number of donors of funds to Mr Ahern in information which was provided to the tribunal on Mr Ahern's behalf in April 2006.
This letter was clearly marked "Strictly Private and Confidential - to be Opened by Addressee Only" and its recipient was informed that neither the fact of the letter having been written to him, nor its content, should be revealed to any third party, save the recipient's legal advisor in the event that he required legal advice.
The letter was dispatched to Mr McKenna by ordinary post and was apparently received by him in the same state as that in which it left the tribunal's offices. No complaint has been received to the effect that it had been tampered with, or that the confidentiality of the contents of the envelope had been compromised prior to its receipt by Mr McKenna.
Mr McKenna consulted his solicitor following the receipt of the letter and the tribunal was responded to by a firm of solicitors acting on his behalf on the 4th July 2006. The details which had been sought from Mr McKenna were provided to the tribunal in a form of a letter from his solicitors dated the 24th July 2006 which had been completed following Mr McKenna's return to Dublin.
The solicitors' letter was received by the tribunal offices on the same date. There was no indication that the letter had been tampered with from the time it had left the solicitors' office and the time it was received at the tribunal's office.
No further correspondence on this issue passed between the Tribunal and Mr McKenna or his solicitors until the publication on the 21st September 2006 of the article written by Mr Colm Keena in that day's edition of The Irish Times.
This article, headed "Tribunal Examines Payment to Taoiseach", contained in the body of the article a statement that The Irish Times had seen a letter written to Mr McKenna by the tribunal. The article quoted a number of extracts from the letter, and these correspond exactly with the words used in the tribunal's letter of the 29th June 2006.
The Irish Times article was seen by the tribunal on the 21st September 2006 and it immediately became apparent to the tribunal that confidential material which had been circulated to Mr McKenna by the tribunal had found itself in the public domain, in breach of the confidentiality of the tribunal. The tribunal immediately communicated with the solicitor for the recipient, and also with The Irish Times, seeking an explanation for the fact that the tribunal's confidential correspondence was published in the newspaper.
The tribunal's letter to Mr McKenna's solicitor crossed with a letter from his solicitor to the tribunal complaining about the fact that their communications with the tribunal had apparently found themselves in the possession of Mr Keena whose enquiries of their client had commenced on the 19th September 2006.
On the 22nd September the editor of The Irish Times responded by letter to the tribunal informing the tribunal that The Irish Times had received an unsolicited and anonymous communication which she considered she had a duty to publish in the public interest. In this letter Ms Geraldine Kennedy stated that she was unaware of the existence of an order of the Supreme Court which had been granted on the 7th October 2005 restraining the publication of confidential tribunal material.
Notably, Ms Kennedy's letter did not deny that the letter quoted in the article was confidential to the tribunal and expressed to be so.
On Monday 25th September 2006 the tribunal made an order requiring Ms Geraldine Kennedy and Mr Colm Keena to produce to the tribunal all documents which comprised the communication received by The Irish Times which led to the publication of the article on the 21st September 2006.
On the same date the tribunal received a letter from Ms Kennedy in which she informed the tribunal that she was not in a position to comply with the order of the tribunal as the relevant material had been destroyed. She further stated that even if she had the material she would dispute the tribunal's right to make the order as the production of the documentation would run the risk of identifying its sources thereby putting in jeopardy what she stated was the primary duty of the editor and journalist namely to protect such sources.
On the 26th September the tribunal issued summonses to Ms Kennedy and Mr Keena requiring them to attend at a public hearing of the tribunal on the 29th September 2006 and there to produce copies of all documents which comprised communications between the tribunal and Mr McKenna, which had been received by The Irish Times, and furthermore to answer all questions put to them.
On the 29th September 2006 both witnesses attended the tribunal in answer to the summonses and were apprised by me of the provisions of the Tribunals of Enquiry (Evidence) Acts and of the obligations imposed upon them by such Acts. They were also apprised of the potential consequences for them in the event that they failed to comply with the obligations imposed on them.
Upon being questioned by counsel on behalf of the tribunal, and in direct response to me, both witnesses refused to answer any questions which they believed might be of assistance to the tribunal in determining the source of the unauthorised disclosure of tribunal material. In their evidence they confirmed that they had destroyed their copies of the documentation after they had been made aware of the existence of the orders which required their production to the tribunal.
Unauthorised disclosure of confidential tribunal material: In order to conduct its enquiries the tribunal is obliged to communicate with very many persons and organisations. It generally does so in writing thereby generating a considerable volume of documentation which is in the hands of parties other than the tribunal itself. Given the nature of such communications it is possible in some instances to identify the nature of the tribunal's enquiries or the identity of the party whose affairs are being enquired into.
The tribunal is conscious of the fact that public disclosure of private matters can be a source of needless public speculation and possibly could be damaging to parties who are identified with the enquiry. The tribunal is consequently mindful of the need to keep its documents confidential to the tribunal and to the recipient of such documents.
As part of the enquiry process, and in order to protect the constitutional rights of parties appearing before it, the tribunal is also obliged to circulate documents to parties in advance of public hearings, where such persons might be adversely affected by the public examination of such matters. Such documents often contain references to those parties which may be damaging to them or to their interests. Such documents are provided so as to allow those parties who might be adversely affected by tribunal findings based upon such documents, the opportunity of defending their respective positions.
Again, the parties receiving such documents are strictly forbidden from using those documents for any other purpose, and in particular prohibited from disseminating those documents to others.
Given the nature of the subject matter of this inquiry the contents of all such documents have the capacity to be newsworthy. Since the commencement of this inquiry persons to whom documents have been sent on strict terms of confidentiality have seen fit to breach that confidentiality by disclosing the information and documents to the press. The press has seen fit to publish such material. The motivation of those parties who have broken the confidentiality of the tribunal communications by revealing matters to the press has not been a desire to serve the public interest, but rather to serve their own private interests. In the past this has been done by way of pre- emptive strikes against other parties they believe are out to damage them, and in some instances, more cynically, to try to damage the tribunal itself by allowing it to be suggested or inferred that the tribunal has been the source of leaking of confidential material to others.
The tribunal's efforts to prevent this abuse have been the subject of detailed rulings of the tribunal to date, and do not require detailed repetition here. It is abundantly clear that the appropriate forum for the airing of such information is the public sessions of the tribunal, where the facts can be enquired into in a forensic way by an objective tribunal which has no vested interest in the matter, and is fully independent. One-sided reporting of material, without putting it in the full context of the inquiry, can often be misleading and damaging to the interests of the parties referred to therein. It is for this reason that the tribunal has explored every avenue open to it to restrain unauthorised publication of material by newspapers and others in advance of the public hearing of such matters before the tribunal itself. Currently the tribunal has an appeal listed before the Supreme Court endeavouring to uphold the tribunal's right to restrain such unauthorised publications by the media.
It is not in dispute that both Ms Kennedy and Mr Keena have refused to answer questions put to them by the tribunal, and that they have failed to produce the documents which they were ordered to produce.
By their own admission they have destroyed documents which were the subject of a Tribunal Order of which they were aware.
The tribunal considers that such acts and omissions amount to breaches of the tribunal orders and of the Tribunals of Inquiry (Evidence) Acts 1921 to 2004. This tribunal is not a court of law, it has no power to adjudicate upon acts which may amount to criminal wrongdoing, nor has it the power to impose civil sanction upon a party who is in breach of its order. The powers of the tribunal are limited to conducting its inquiry, reporting upon its findings, and making its recommendations to the Oireachtas.
However, the tribunal does have the power to seek the assistance of the High Court, where a person has failed or refused to comply with an order of the tribunal, or where that person has disobeyed an order of the tribunal. The tribunal has decided that it will exercise these powers, conferred upon it by Section 4 of the Tribunals of Inquiries (Evidence) Amendment Act 1997, to seek orders from the High Court to compel Ms Kennedy and Mr Keena to comply with the tribunal's orders which they have breached to date.
The primary concern of the tribunal at present is to protect the integrity of its inquiries, and it is of the view that this objective is best served by taking all necessary steps to establish the identity of the party or parties who furnished the documentation to The Irish Times which led to the publication of the article on the 21st September 2006.
In the event that the High Court grants such orders, the tribunal intends to reconvene the sessions of the tribunal to endeavour to elicit the information sought from Mr Keena and Ms Kennedy.
Failure to comply fully with an order of the High Court can amount to contempt of court.
Speculation as to the source of the unauthorised disclosure of tribunal material: The publication of The Irish Times article has given rise to considerable speculation as to the source of the unauthorised disclosures which have led to this publication. The tribunal is concerned to note that in the press coverage of this matter it has frequently been referred to as "a leak from the tribunal" thereby carrying the inference that the tribunal itself was instrumental in breaching the confidence of those parties with whom it had dealings.
Any such conduct would be a gross dereliction of duty on the part of the tribunal or any of its personnel.
This tribunal was appointed following resolution of both Houses of the Oireachtas in order to inquire into and report upon then current allegations of corruption.
A serving High Court judge, Mr Justice Feargus Flood, was appointed as sole member of the tribunal, thereby signalling to the public that the matter would be inquired into in a totally independent, fair and impartial way. The current tribunal members are all serving members of the judiciary. The standards of probity which we have applied to our task as members of this tribunal are no less than those which we apply in our judicial office. The Tribunal rejects the inference made that the Tribunal has leaked material to the media or elsewhere.
The tribunal is mindful of the fact that public confidence in the integrity of the tribunal is essential if the tribunal is to serve the purposes for which it was established. Any suggestion that the tribunal was acting to single out or damage the interest of any particular individual or group is without foundation.
Any person who maintains the contrary, in the absence of any evidence whatsoever to support their belief, does considerable harm to the good standing of the tribunal, which has been set up to allay public disquiet arising from allegations of corruption in the planning process.
The tribunal takes this opportunity to request any person who has any evidence, or any information whatsoever, which may suggest that the tribunal itself has in any way leaked confidential information to bring that information to my attention.
I give my assurance that the matter will be fully investigated by me as part of the inquiry which was initiated by me immediately following upon the publication in The Irish Times on the 21st September, 2006.
This inquiry is continuing.