Bernard Durkan (Kildare North, Fine Gael)
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Question 214: To ask the Tánaiste and Minister for Justice, Equality and Law Reform if he will make public the letter written by the Secretary General of his Department to An Garda Síochána complaining about the publication of an article (details supplied) containing information on the Bermingham report into the Dean Lyons case. [9731/07]

Michael McDowell (Dublin South East, Progressive Democrats)
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The Secretary General of my Department did not issue a letter "complaining about the publication of an article" relating to the Bermingham report into the Dean Lyons case. A letter dated 14 August 2006 was issued to the Garda Síochána on his behalf stating that there was reason to believe that a person or persons who had received a draft of the report pursuant to section 34 of the Commissions of Investigation Act, 2004 had disclosed material contrary to section 37 of that Act. Section 37 creates a very specific offence and only relates to draft reports. There was reason to believe that the article in question may have been based on a draft disclosed contrary to section 37.

It is open to any individual to make a request under section 7 of the Freedom of Information Act, 1997 for a copy of the letter of 14th August 2006 and such request will be determined in accordance with the various provisions of the Act by a designated official of my Department in the normal way. However I have to say that legal advice is that it would not be appropriate to make public documents pertinent to an ongoing Garda investigation.

Bernard Durkan (Kildare North, Fine Gael)
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Question 215: To ask the Tánaiste and Minister for Justice, Equality and Law Reform if he discussed in advance with the Secretary General of his Department the decision by the Secretary General to write a letter to An Garda Síochána complaining about the leak of information to a journalist (details supplied) in respect of the Bermingham report into the Dean Lyons case. [9732/07]

Michael McDowell (Dublin South East, Progressive Democrats)
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Last August, the Secretary General of my Department contacted me while I was on a family holiday and said that it appeared probable that a draft report of the Birmingham Commission of Investigation had been disclosed by a statutory recipient. He told me that he intended to report the alleged disclosure by the statutory recipient to the Garda Síochána. It was clear to me that it was to be a complaint about a suspected breach of the criminal law by a statutory recipient and not a complaint about the publication of the material or the work of a journalist who was not a statutory recipient.

I was aware that under the Commissions of Investigation Act 2004 such recipients, being persons named in the draft report, could seek amendments or apply to court to ensure that their constitutional rights were not infringed. I was further aware that they were not empowered to seek to publicise the draft for their own purposes — whether nefarious or otherwise. This applies whether the disclosure covers material relating to themselves or material relating to others who might be impugned and who might be in the process of making their own representations. It was also the case under the legislation that I, as specified Minister, was obliged to publish the final report as soon as possible after I received it and that arrangements were in train within my Department to do so at the end of the month. It should be borne in mind that unauthorised disclosure of a draft report by a statutory recipient constitutes a criminal offence even if such disclosure takes place after the final report has been published. In other words it is a permanent rather than a temporary prohibition.

The Bermingham Report on the Dean Lyons case was the first report prepared under the Commissions of Investigation Act 2004 which was intended to provide a speedier and more cost effective inquiry mechanism than Tribunals of Inquiry. The Secretary General was greatly concerned that there was a real danger that if the provisions of the Act were to be flouted without sanction, the new mechanism could be fatally undermined on its first outing.

Mr. George Bermingham, who was out of the country at the time, was contacted and confirmed that he had not given any written consent to disclosure of the draft report. The Commission staff had also informed the statutory recipients that it was a criminal offence to make a draft report public. However, under section 43 of the Act of 2004, the Commission had been legally dissolved on the submission of its final Report to the Minister on 28 July 2006 and therefore the Commission itself could not pursue the matter. Nonetheless Mr. Bermingham who had been the sole member of the Commission indicated to the Department that he favoured a criminal investigation.

In these circumstances, the Secretary General of my Department decided to make a formal complaint seeking an investigation by the Garda Síochána into the matter and the purpose of his call was to advise me of his intention to do this. He made it clear to me that his decision was not being submitted to me for any form of approval or consent. He further advised that it would be both unnecessary and inappropriate for me to be involved in any way in this decision. The Secretary General contacted a Deputy Commissioner of An Garda Síochána to make the complaint verbally. This was followed up by a formal letter issued on 14 August 2006 setting out the situation insofar as it was known to the Department.