A briefing note created for the former minister Mr Michael Lowry, in relation to the outcome of the 1995 mobile phone licence competition, may have misrepresented the size of the gap which existed between Esat Digifone and the consortium which came second.
Civil servant Ms Maev Nic Lochlainn said that she was asked to produce a briefing note for the minister which cast the outcome in a positive light and emphasised the positive aspects of Esat Digifone. She said that she would make a distinction between a document produced before a decision was made on a matter and documents produced after the decision was made.
She told the tribunal that the document she produced was written under particular "terms of reference" which were given to her. She agreed with Mr Jerry Healy SC, for the tribunal, that the note was not an accurate reflection of the competition process. She said it was designed to "give the most positive flavour possible" to what had occurred.
Mr Healy put it to Ms Nic Lochlainn that she had been part of a serious, sealed process, and he asked how she could produce a document which put a "positive spin" on it. Ms Nic Lochlainn said the document she produced was to be used after the decision and would not have been intended to influence Mr Lowry in any way in relation to the making of a decision. In that regard, it was not a "serious" document, she said. It was not a document which would be used by a minister when he or she was making a decision.
She did not agree that the document was produced to assist the minister in justifying the outcome of the selection process. She said it was a briefing document prepared so that the minister could know something, not so he would do something.
When it was put to her that the document, in its summary of how the two top consortiums scored in relation to various criteria, was a distortion of what was in the final report, Ms Nic Lochlainn disputed this. She said that she did not use merely the aggregate table when summarising the outcome, she also used the body of the report. She said she believed this was because she was given terms of reference to be as positive as possible.
"I was trying to find evidence in the [final] report which showed [Esat Digifone] in a positive light."
When it was put to her that the document contained distortions, perhaps for the reasons she had proposed, Ms Nic Lochlainn said that if there were any misrepresentations in the briefing note it was "simply a misrepresentation in relation to the gap which existed between the top two applicants". She said that, after the decision, it "didn't matter what size the gap was, as the decision had been made".
