Background 

In the recent High Court case Byrne v Hannon & An Post IEHC 101 the Court considered the issue of public interest privilege and discovery. In this case Susan Byrne, a former post office clerk, brought an action for damages against her employers arising out of a tiger kidnapping in 2011. 

What was Sought in Discovery?

A claim of public interest privilege was asserted over certain documents in order to resist their production. These documents concerned included records relating to security manuals and guidelines relating to security installations, inspections and arrangements. An Post objected to the discovery of these documents on the grounds that they contained “highly sensitive information and the disclosure would pose a real and substantial systemic risk” to the security and safety of post offices, employees and the public. The plaintiff argued that the nature of the documents meant there were necessary and noted there would be a “blind spot” for the plaintiff in the proceedings if she were not furnished with the documentation sought. 

What is Public Interest Privilege?

Public interest privilege can be asserted to protect documents from disclosure where the proper functioning of the State may be adversely affected if those documents were disclosed. It may also be asserted where to order disclosure would adversely affect the prevention and detection of crime. Public interest privilege is not confined purely to the executive functions of the State, it may also available where the balance of the public interest favours non-disclosure. Where a claim of public interest privilege is made, a court will balance the public interest in the proper administration of justice with the public interest put forward for non-disclosure.

Did Public Interest Privilege Apply in this Case?

In order to consider the application, the High Court ordered the defendants to provide the documentation sought under the categories to the Court for its review. In reaching his decision, Mr Justice Sanfey relied on the principles for public interest privilege as stated by the Supreme Court in Ambiorix v. Minister for Environment (No. 1) 1 IR 277 (as summarised in the above paragraph).  Ultimately Sanfey J. reviewed the documents and found that none of them contained anything that could properly be considered as protected by public interest privilege. He found that:

• the first category of document – the “Postmaster’s Manual” – did not attract public interest privilege and should be discovered;
• the second category of document was in relation to the installation of an intruder alarm at Balbriggan sub-post office and was not relevant to the proceedings; and
• the third category of document related to a “Security Procedures Handbook” detailing a range of security procedures from 2006. The Handbook was found to be relevant and public interest privilege did not apply.  The Court found that if the plaintiff was not permitted discovery of this category of document, the plaintiff may have difficulty establishing her case against the defendant. The Court did observe that the Handbook was undoubtedly a confidential document containing sensitive information which required some protection from general dissemination. 

Discovery was ordered of the first and third categories with some qualifications. Certain redactions were ordered and as a condition of the production of the documents, the Court ordered that the discovery of the two categories of documents be restricted solely to the necessary parties: the plaintiff, the plaintiff’s solicitor, counsel for the plaintiff and any expert witness giving evidence at the hearing. 

The restricted access to the documents is a pragmatic approach and is similar to the approach taken by the Court to confidentiality rings in other cases which we previously discussed here. This decision provides insight for parties who might be considering invoking public interest privilege in the discovery process. It also further emphasises the Court’s willingness to restrict access to certain documents to a limited group of people directly involved in litigation. 

Contributed by Adele Hall & Marie McQuail