Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Before its dissolution and, in accordance with section 43(2) of the Commission of Investigation Act 2004, the O'Higgins commission of investigation deposited its files with my Department.

The provision in question allows for the depositing of papers in circumstances where a commission is no longer in existence as papers belonging to a commission must be held somewhere. What is at issue here is the safe keeping of the files in terms of their ultimate depositing in the National Archives, their production before a tribunal if that becomes relevant or, similarly, on foot of a court order if one were made in the course of judicial proceedings.

I do not believe it was ever envisaged that the act of depositing files with the sponsoring Minister was intended to allow that Minister access to the private proceedings of a commission of investigation. That would mean that after any commission of investigation had concluded its work in any area, despite the fact that evidence was given in private, the veil of confidentiality surrounding its proceedings could be lifted by any Minister who could then go through the evidence given in private by any party to the commission proceedings. That would be wholly inappropriate and, in any case, section 11(3) of the Commission of Investigation Act 2004 specifically provides, inter alia, that a person, including a member of the commission, shall not disclose or publish any evidence given in private except in certain restricted circumstances. The act of depositing those documents in my Department has to be seen as consistent with that obligation and, accordingly, it would not be proper for me, as Minister, to access commission papers except in accordance with the very specific exceptions set out in the Act. It is clear too from section 11 that it would be an offence for a Minister to disclose material covered by that section except in the limited circumstances set out in that section.

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