A NUMBER OF third parties will be granted access to the affidavit that the State’s corporate watchdog wants to use to have inspectors appointed to Independent News and Media (INM).
These third parties will have access to sections of the affidavit in redacted form, after the Office of the Director of Corporate Enforcement (ODCE) reached an agreement with INM to release sections of the documents without breaching legal privilege.
A number of people had been named in media reports, including former INM employees and journalists, in the affidavit as potentially having had their data breached by the company back in 2014.
As well as the ODCE’s case, a number of the so-called INM19 were seeking to access the affidavit to see what it says about them. Other interested parties seeking access include the Data Protection Commissioner, who is conducting an investigation into the alleged data breach.
President of the High Court Peter Kelly accepted the agreement reached between INM and the ODCE and ruled that the information divulged to third parties through the affidavit cannot be used by them to inform any other legal cases or investigations currently under way.
Context
Today, the judge was again hearing applications from parties including those named among the so-called INM19 to be given access to the affidavit submitted by the ODCE.
The ODCE was aiming to present this affidavit as ground for the court to appoint inspectors to investigate Independent News and Media.
However, having the document read out in open court is set to be the subject of a Judicial Review next month, after INM objected to the ODCE’s case for inspectors to be appointed to it being brought at all. It was successfully granted a Judicial Review after it objected at a hearing last Monday.
The affidavit in question from ODCE director Ian Drennan is based on, among a number of other matters, a number of protected disclosures by former INM executives Robert Pitt and Ryan Preston.
The key headlines from this affidavit – details of which have already reported on by a small number of media outlets - are an alleged large scale removal of data from the offices of INM to an external company, and the company’s ill-fated takeover of Newstalk.
The INM19 refers to persons whose data was allegedly removed and some of these parties who’ve been named in the affidavit – extracts of which gave been detailed in the public domain – made submissions last week to be given access to see the full affidavit.
Counsel for the ODCE Neil Stein said at the time that, while he believed the various applicants have no legal right to view those filings, he had no objection to them being furnished with copies.
Counsel for INM Shane Murphy, however, disagreed and suggested that, due to the exhibition of ‘privileged material’ in the court filings, access to the various documents should only be granted to the Data Protection Commissioner.
In last week’s hearing, Mr Justice Kelly resolved the issue by putting it back until today, saying that it was up to the ODCE and INM to resolve their differences over that alleged privileged material before then – otherwise he would order its release on that date.
What happened today
Appearing before Mr Justice Kelly again today, counsel for both the ODCE and INM said the two parties had come together and reached an agreement whereby these third parties would be granted access to the affidavit in redacted form.
Counsel for INM Shane Murphy told the court that sections of the affidavit are fully subject to legal privilege and that the parties had therefore agreed to issuing the affidavit to the various players involved with a number of redactions.
Mr Justice Kelly said that this agreement between the ODCE and INM had occurred “in a vacuum” and the various third parties wishing to be involved had no indication prior to the hearing that this agreement had been reached.
Counsel for former INM CEO Robert Pitt was told that Pitt could have full access to the affidavit from ODCE director Drennan, with a number of redactions.
A number of other interested parties were given access to between pages 15 and 81 of the document, which specifically relate to the data breach. A number of them are included among the INM19:
Counsel for former INM chairman Leslie Buckley also made a submission that he wished to be given access to the affidavits and court documents.
In his ruling, Mr Justice Kelly accepted the agreement that had been reached between INM and the ODCE and said that the third parties would have the right to come back and make an application for access to further extracts from the documents if they so wished.
He repeatedly referenced “informality” that had “becursed the proceedings” with various lawyers coming forward making representations.
He concluded that now that a number of third parties would be granted access to portions of the documents – including responding affidavits that also relate to them – they would have to make a formal application if they were seeking access to further parts of the legal documents.
In the case of the Data Protection Commissioner, the judge ruled that the affidavits cannot be used to inform any investigation and that, if the DPC wished to do use the information in such a manner, she would have to make a further application in court.
The same is true for Red Flag Consulting, who are currently involved in legal proceedings against Denis O’Brien, who is INM’s largest shareholder. They cannot use the information contained within these documents to inform that separate legal case.
Next steps
So, that’s it for now in terms of access to the affidavits for the third parties involved. They’ve been given limited access to the affidavits in question.
As for the matter of allowing the inspectors to be appointed to INM, there is some way to go there.
Next month, a Judicial Review will look into whether or not the ODCE can bring the matter of appointing inspectors to INM at all.
If the review rules that a case can be brought, we are now a step closer to a hearing over whether inspectors will be appointed. If a review is not granted, it would appear unlikely that inspectors could be appointed at all.
With reporting from Cianan Brennan
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