Public Interest Privilege Considered

The High Court has recently considered public interest privilege. It also addressed the test for deciding whether to order the disclosure of documents where this privilege is claimed. Our Dispute Resolution team examines the decision.

Public interest privilege is a particular type of privilege that can be asserted to protect documents from disclosure. It applies where releasing the documents could harm the proper functioning of the State. The privilege may also be asserted where disclosing the documents could adversely affect the prevention and detection of crime. However, public interest privilege is not limited to the State’s executive functions. It can also apply where the balance of the public interest weighs against disclosure.

English law now favours the term ‘public interest immunity’ which, once established, cannot be waived. By contrast, ‘public interest privilege’ more accurately reflects the Irish law position where waiver of the privilege can arise.[1] The principle arises relatively infrequently, with most case law on privilege relating to legal professional privilege. However, the High Court recently considered the availability of public interest privilege and applied the relevant test.[2]

Background

The decision arose from a dispute about the inspection of documents in discovery. The underlying proceedings included a claim of malicious prosecution arising from an alleged assault by a doorman at a city centre bar. The plaintiff reported the incident immediately at Pearse Street Garda Station. In light of a counter-allegation that the plaintiff had assaulted the doorman, a decision was made to prosecute her which was ultimately withdrawn. It was further alleged that she was advised that if she proceeded with a complaint against the doorman, she would be prosecuted, but if her claim was withdrawn, she would not. She maintained that communications with the DPP and the decision to prosecute were relevant to her case. She contended that they related to the key elements of the tort of malicious prosecution and she therefore sought discovery.

The defendants ultimately objected to producing 19 documents listed in the relevant section of the Affidavit of Discovery as sworn. That refusal related to claims of legal advice privilege and public interest privilege over 18 documents, and public interest privilege over one further document. The 18 documents over which legal advice and public interest privilege was claimed were essentially either:

• Internal Garda communications regarding the investigation, or
• Communications between An Garda Síochána and the DPP

The sole document over which public interest privilege alone was asserted was the Garda PULSE record. The plaintiff challenged the privilege that was asserted. In one of the affidavits sworn resisting the application, the Gardai stressed:

“the public interest to protect documents from disclosure where the proper function of the gardaí and the DPP may be adversely affected by disclosure including where disclosure would adversely affect prevention and detection of crime. The Gardaí and the DPP need to have confidence in the knowledge that their communications will not be disclosed at a later date and to allow for open communication regarding whether prosecution will be maintained or not. This case is an example of why privilege should be preserved over the documents in question.”

The affidavit sworn on behalf of the DPP highlighted how it was:

“essential that the [DPP] records an important decision like this by expressing a view as to a case and that this view is not subject to being disclosed at a later time”.

It also emphasised the special position of the DPP in law. The DPP must be able to carry out its functions independently. It should not have to disclose its views about the case, the strength of the evidence or the proofs required.

Consideration

In Ambiorix v Minister for Environment (No 1)[3], the Supreme Court emphasised the importance of fair procedures. It also highlighted the judiciary’s role in determining if documents, even those over which public interest privilege was asserted, should be disclosed. The Court held that any claim for executive privilege must be evaluated by the courts and that no document was automatically exempt from discovery.

The courts have recognised that determining an assertion of public interest privilege involved balancing the interest relied on by the State as a justification for refusing disclosure, and the interest(s) served by disclosing them.[4] This involved considering the right of the parties to either prosecute or defend the proceedings, as applicable, against the interest of the State in maintaining the non-disclosure. The case law also demonstrates that, even where the disclosure is warranted, further protections may be put in place. For example, certain content might be made available subject to appropriate redactions. Disclosure might also be limited to necessary parties, such as solicitors, counsel and experts. This is sometimes known as a confidentiality ring or club.[5]

In the most recent case, Mr Justice Bradley noted that:

“Insofar as public interest privilege is concerned, I am required to balance the public interest in the proper administration of justice (being the conduct of this damages claim being maintained by the plaintiff against the defendants) against arguments posited for non-production by the defendants which rely principally on the public interest in the prevention and prosecution of crime.”

He went on:

“…this is an appropriate case where the weighting of those competing interests requires my inspection of the scheduled documents… it is appropriate that I read the scheduled documents, and having done so, balance the public interest in the due administration of justice, that being the conduct of this civil litigation… as against the public interest in preserving the confidentiality of a garda file, and other documentation, in relation to a criminal investigation conducted by it.”

Mr Justice Bradley therefore reviewed each document the subject of the claimed public interest privilege “by reference to the circumstances actually presenting”.[6] In doing so, he observed that the exercise:

“is fact dependent and absent clear examples of privilege, the more important the material is relevant to the proper disposition of these proceedings, the greater the case is for production; alternatively, if the documents are not germane to the dispute, the greater the case is for not producing them.”

Based on that approach, he decided following review that certain documents should be disclosed despite the asserted public interest privilege. However, others, including e-mails setting out the considerations of the officer in charge of the investigation, as well as particular communications to and from the DPP’s office, should not be produced “to ensure the public interest in the proper prosecution of criminal offences”. When making an order for limited disclosure, he directed that the necessary redactions be applied to the documents. The redacted documents were then to be provided for his review in the first instance prior to being disclosed.

Conclusion

The decision is a useful reminder on the law applicable to public interest privilege. It sets out the approach of the courts when carrying out the balancing exercise required to address the issue. Although documents that are highly relevant to the dispute generally support disclosure, this is not a deciding factor on its own. Where the documentation involved relates to criminal investigations and potential prosecution, the court will be slow to direct disclosure where there is a public interest in the proper prosecution of offences. However, it is clear than an applicant should not feel concerned that disclosure will be refused as a matter of course. In appropriate cases, it is an application worth bringing before the courts.

For more information and expert advice on commercial disputes, contact a member of our Dispute Resolution team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Egan v O’Toole [2005] IESC 53.

[2] Wolinska v Commissioner of An Garda Síochana, DPP & Carberry [2025] IEHC 382.

[3] [1977] 1 IR 277.

[4] See, for example, Meegan v Times Newspapers Ltd [2021] IEHC 495, where the issue arose in the context of third party discovery sought against the Commissioner of An Garda Siochana, relying on the Supreme Court in Skeffington v Rooney [1997] 1 IR 22 was relied on.

[5] See, for example, Byrne v Hannon & An Post [2020] IEHC 101.

[6] The approach suggested in Gibb v Minster for Justice [2013] IEHC 238.