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

At the outset it is important to correct what might be a misunderstanding in the Deputy's question. In depositing the evidence and documents with the specified Minister in this case, there was no question of my having authority to access that evidence or those documents. The purpose of depositing documentation with the relevant Minister is for safeguarding it. It would be unthinkable that any Minister with whom such documentation is deposited would be free to examine details of proceedings heard in private. To do so would be to set at naught the confidentiality surrounding the commission's proceedings and would be to contravene section 11(3) of the 2004 Act which 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, including as directed by a court.

The act of depositing documents has to be seen as consistent with that obligation and therefore it would not be proper for a Minister or Department to access commission papers except in accordance with the very specific provisions 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, again, in the limited circumstances set out in that section.

Section 43 allows for the deposition of evidence and documents in circumstances where a commission is no longer in existence as obviously papers belonging to a commission must be held somewhere.

However, it is clear from the use of the word "deposit" that what is at issue here is the safekeeping of the files pending their ultimate disposal to the National Archives, if appropriate; their production before a tribunal of inquiry, if that becomes relevant; or, similarly, on foot of a court order if one were to be made in the course of judicial proceedings. For that reason I can confirm for the Deputy that I have not examined the transcripts of the O'Higgins commission.

Information not given on the floor of the House

The Deputy may also be aware that, following the referral by me to GSOC of certain allegations which arose following the publication of the O'Higgins commission report, the chairperson of GSOC wrote to me seeking access to certain records of the commission. Having received the Attorney General's advice, I informed the chairperson of GSOC of the necessity to secure a court order directing that the material be provided. While the granting of any such order is a matter for the courts, I will of course comply with any such order, if it is made.

For the reasons set out above, I can confirm for the Deputy that I have not examined the transcripts of the O'Higgins commission of investigation.

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