Court grants directions for redacted disclosure use under Protected Disclosures Act 2014 with liberty to apply.

APPROVED

FOR PUBLICATION

[2025] IEHC 518

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2025/104 JR

Between:

YVONNE O’ROURKE

Applicant

-and-

MINISTER FOR DEFENCE

-and-

THE PROTECTED DISCLOSURES COMMISSIONER

Respondents

Judgment of Ms. Justice Nuala Jackson delivered on 29 September 2025.

INTRODUCTION

1. I have been requested by the Second Named Respondent (‘the PDC’) to give directions as to the manner in which confidential material relating to the identity of persons making protected disclosures may be utilised in the context of litigation. In the present instance, the PDC wishes to exhibit such material in an Affidavit to be filed in defence of the within proceedings. I have had the assistance of most useful and comprehensive legal submissions, oral and written, from Counsel for the PDC together with oral submissions from Counsels for the Applicant and the First Named Respondent, although I do accept that such submissions must, of necessity, be somewhat curtailed by the fact that the proposed redaction/anonymisation of the materials concerned made by the PDC has not, quite correctly, been made available to them.

2. In light of the foregoing, the Applicant has sought that there would be liberty to apply subsequent to the defence documentation being filed and made available to them in the event that any issues arise in respect of the redacted/anonymised documentation such as requires further clarification in the context of the defence being made or the response thereto. I have no hesitation in granting such liberty to apply to the Applicant and to the First Named Respondent as, quite evidently, they cannot be in a position to address issues which may subsequently arise when they have sight of the documentation concerned.

LEGAL FRAMEWORK

3. The application under consideration arises in the context of the Protected Disclosures Act 2014, as amended by the Protected Disclosures (Amendment) Act, 2022 (‘the 2014 Act’). The long title to the 2014 Act states that it is:

“An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.”

The Act, as amended, gives effect to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. It further provides for the establishment of the Office of the Protected Disclosures Commissioner and confers functions on it.

4. The functions of the PDC are set out in sections 10A to 10F of the 2014 Act, inter alia, these functions include that the PDC must identify suitable recipients for reports from whistleblowers. These reports may be received directly from workers, transmitted from Ministers, or transmitted from “prescribed persons” within the meaning of the Act. Once a report is received by the PDC, he must then identify the most appropriate person to whom the report should be transmitted for initial assessment and follow-up. The 2014 Act provides that where the PDC cannot identify an appropriate person to whom to transmit the report, the PDC himself must accept the report for the purposes of initial assessment and follow-up. The 2014 prescribes that the PDC must accept the report himself where a “prescribed person” or “other suitable person” cannot be identified.

5. The substantive proceedings in the present case concern an application for judicial review where complaint is being advanced about the handling of a protected disclosure by the PDC, certiorari, mandamus and other reliefs are sought where it is alleged that the PDC ought not to have made the decision to transmit a protected disclosure made by the Applicant to the Secretary General of the First Named Respondent’s department but rather that he should have accepted the report himself for investigation. In support of the claim for judicial review, the Applicant states, inter alia:

(i) That it was explicitly set out to the Commissioner that the office of the Secretary General of the Department of Defence was complicit in the reported wrongdoing, its concealment and cover-up and should not be forwarded the protected disclosure (paragraph 10 of the Statement of Grounds);

(ii) That the decision by the PDC to identify the Secretary General of the Department as a “suitable person” to follow-up on the Applicant’s protected disclosure was fundamentally flawed and in breach of the 2014 Act and the Directive, in particular since the Applicant was making allegations of wrongdoing against the Secretary General, this breached the principle of nemo iudex in causa sua and the Applicant’s constitutional right to fair procedure and natural justice and gave the Department the green light to circumvent legitimate scrutiny thus defeating the purposes of the 2014 Act and the Directive (paragraph 31 of the Statement of Grounds).

6. The PDC, in preparing his defence to the proceedings brought herein, asserts that over a brief period of time in January 2024 he received eight disclosures from seven different reporting persons, each of which consisted of sets of reports comprising three parts with reference to the same three alleged wrongdoers being (a) the Defence Forces, (b) the Department of Defence and (c) the Minister for Defence. I have been provided with copies of all of these sets of reports. Upon receipt, an analysis of these sets of reports was commenced by the PDC and summarisation in tabular format was carried out. I have been provided with a copy of this analysis. The PDC asserts that this analysis made it manifest that the reports raised overlapping allegations concerning the alleged wrongdoers and that there was evident replication across the reports. The PDC has referenced this as “template language.”

7. It is further asserted that while all of these reports were considered individually in accordance with the 2014 Act, the PDC also considered them as a whole given their many overlapping elements. He therefore submits that it is desirable that the Court ultimately hearing these substantive proceedings, and when reviewing the decision of the PDC to transmit the Applicant’s report (and the other seven reports) to the various recipients of it (the PDC transmitted the reports to a variety of recipients depending on the nature of the allegation made, such recipients including, in addition to the Secretary General of the Department of Defence, the Medical Council and the Legal Services Regulatory Authority) ought to be aware of the fact that these reports were part of a number of similar or overlapping reports, received contemporaneously, concerning similar or related allegations. The PDC submits that review of his analysis requires consideration of the individual and cumulative assessments made by him. To this end, the PDC seeks to exhibit the related reports in the affidavit which will verify his statement of opposition. The purpose of the PDC seeking to exhibit these third party disclosures relates not to the substantive complaints contained in them but rather to the nature and extent of his consideration of the appropriate manner with which to deal with the complaint the subject of this judicial review, inter alia, having regard to the latter and the former which viewed collectively.

8. An Affidavit was sworn on 11 September 2025 and filed by the PDC in support of this application, the deponent being Damien Cahill, Assistant Principal Officer in the Office of the PDC. This Affidavit avers, inter alia:

“4. I make this affidavit to support an application for directions which was made to this Honourable Court {Ms. Justice Jackson) on 7 July 2025concerning the way in which potentially confidential material, relating to the identity of persons making protected disclosures, may be exhibited to the affidavit(s) of the Commissioner in defending these judicial review proceedings.

…

17. There is also a table summarising all eight reports, considerations and potential recipients at Tab 12 of the Booklet (the "OPDC Table"). The Commissioner requested his staff to produce this table. As will be explained in the affidavit of the Commissioner which will verify his Statement of Opposition, in a meeting on 30 January 2024, the Commissioner noted that all of the reports were difficult to assess in the format in which they were submitted. The Commissioner requested that the reports be analysed together in tabular format, including a list of potential recipients for each report. The Commissioner requested that the specific allegations in each report be extracted and confirmed with each reporter, with clarification sought from the reporter where necessary.

18. As can be seen from the OPDC Table, the reports raise overlapping allegations about the alleged wrongdoers. For example, there are complaints about inadequate inquiries/reviews/tribunals, complaints about failure to protect the health and safety of members of the Defence Forces, and allegations about the failings of legal advisors. Many passages are "boilerplate" or verbatim across the reports.

…

22. Importantly, while all eight reports were considered individually in accordance with the 2014 Act, the Commissioner also considered them as a whole given their many overlapping elements. It is, therefore, desirable that the Court ultimately hearing these substantive proceedings, and when reviewing the decision of the Commissioner to transmit the Applicant's report, be aware that:

a. these reports were part of a suite of similar or overlapping reports concerning the Defence Forces, the Department of Defence and the Minister for Defence;

b. they were all received around the same time; and c. the Commissioner identified appropriate recipients for each following a careful analysis of the individual allegations.”

9. The current application seeks directions in relation to the exhibiting of such materials in the context of the statutory provisions relating to confidentiality.

CONFIDENTIALITY

10. The duty of confidentiality resting upon the PDC is clear in European and in domestic legislation. Recital 82 of Directive (EU) 2019/1937 states: “Safeguarding the confidentiality of the identity of the reporting person during the reporting process and investigations triggered by the report is an essential exante measure to prevent retaliation. It should only be possible to disclose the identity of the reporting person where that is a necessary and proportionate obligation under Union or national law in the context of investigations by authorities or judicial proceedings, in particular to safeguard the rights of defence of persons concerned.

Such an obligation could derive, in particular, from Directive 2012/13/EU of the European Parliament and of the Council. The protection of confidentiality should not apply where the reporting person has intentionally revealed his or her identity in the context of a public disclosure.” (underlining added)

11. The 2014 Act clearly places such a duty of confidentiality on the PDC in respect of information which could directly or indirectly disclose the identity of other reporting persons. Section 16(1) of the Act states:

“16. (1) A person to whom a report is made or transmitted under this Act (in this subsection referred to as "the first-mentioned person") shall not, without the explicit consent of the reporting person, disclose to another person, other than such persons (including members of staff designated under section 6A, 7A, 10B, 10C, 10D or 10E for the purposes therein stated) as the first-mentioned person reasonably considers may be necessary for the purposes of the receipt or transmission of, or follow-up on, reports as required under this Act, the identity of the reporting person or any information from which the identity of the reporting person may be directly or indirectly deduced.”

12. The aim and focus of such duty is obvious, being to encourage reporters to come forward and to prevent penalisation. In Portakabin Limited and Portakabin (Ireland) Limited v Google Ireland Limited [2021] IEHC 446 Allen J. discussed section 16 of the 2014 Act and stated:

“19. The Protected Disclosures Act, 2014 is entitled “An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.” The Act, in s.5, provides quite an elaborate definition of a “protected disclosure” by reference to the subject of the disclosure and the person to whom and circumstances in which the disclosure is made. It confers a number of protections on persons who have made a protected disclosure, specifically by making provision for redress in case an employee is dismissed or penalised or otherwise suffers detriment. The Act, in s.16, save in the circumstances and for the purposes specified, prohibits the disclosure by a person to whom a protected disclosure is made or referred of information that might identify the person by whom the protected disclosure is made. Section 14 of the Act confers immunity from civil liability for making a protected disclosure, other than a defamation action, in which case it will be a defence if the defendant can prove that the statement complained of was a protected disclosure within the meaning of the Act. While the Act, in s. 5(8) provides for a presumption in proceedings involving an issue as to whether a disclosure is a protected disclosure that it is a protected disclosure, it is a question of fact in each case.”

13. There are, however, legislatively recognised exceptions within section 16(2) of the 2014 Act which states:

“(2) Subsection (1) shall not apply in the following cases:

(a) where the disclosure is a necessary and proportionate obligation imposed by Union law or the law of the State in the context of investigations or judicial proceedings, including with a view to safeguarding the rights of defence of the person concerned;

(b) …

(c) where the disclosure is otherwise required by law.”

The PDC seeks to invoke such exceptions in the present case.

14. At paragraph 25 of his submissions (and paragraph 25 of the Affidavit grounding the within application), the PDC opines:

“However, it is the Commissioner’s position, based on straightforward application of the section, that in the context of these judicial proceedings, an Order from the Court permitting the related reports and associated correspondence to be exhibited, subject to any arrangements the Court deems necessary, is both necessary and proportionate.”

15. On the issue of necessity, the PDC, at paragraph 26 of the Affidavit (and submissions), states:

(i) The related reports are necessary for the Commissioner’s defence of the proceedings.

It is respectfully submitted that the Commissioner must be able to refer to the context in which he made his decision to transmit the Applicant’s report to the recipient he chose.

(ii) The Commissioner must be able to show how the nature and format of the other reports legitimately influenced his understanding of some of the “template” aspects of the Appellant’s report, including the statement set out above regarding the Secretary General’s complicity in the alleged wrongdoing.

(iii)The Commissioner must be able to show how he carefully identified a range of different recipients for the various allegations of wrongdoing made across the Applicant’s report and the related reports.

(iv) The Commissioner has a duty of candour. He must disclose to the Court and the other parties all information which may be relevant in reviewing the Commissioner’s

decision making.

(v) The Court which will ultimately hear and determine these proceedings must be entitled to have all relevant information before it.

16. On the issue of proportionality, the PDC, at paragraph 27 of the Affidavit (and submissions), states:

“…, the identity of the other seven reporting persons is not relevant to the Commissioner’s defence of these proceedings. The Commissioner does not propose that the other reporters should be joined as notice parties, given that this would inevitably delay the determination of the Applicant’s claim and necessitate the use of further Court time. Accordingly, the Commissioner proposes to redact their names and any information that is likely, in the Commissioner’s assessment, to directly or indirectly identify the other reporting persons.”

“Necessary”

17. The term “necessary” has been widely discussed in the context of discovery applications. The decisions in this regard are useful and instructive. In the dictum of Simon Brown L.J. in Wallace Smith Trust Co v Deloitte [1997[ 1 WLR 257 (cited with approval by Kelly J in Cooper Flynn v. Radio Telefis Eireann [1993] 1 I.R. 375), it is stated:

“5. Disclosure will be necessary if: (a) it will give ‘litigious advantage’ to the party seeking inspection (Taylor v Anderton [1995] 1 WLR 447 at 462 and (b) the information sought is not otherwise available to that party by, for example, admissions, or some other form of proceeding (e.g. interrogatories) or from some other source (see e.g. Dolling-Baker v Merrett [1990] 1 WLR 1205 at 1214) and (c)

such order for disclosure would not be oppressive, perhaps because of the sheer volume of the documents (see e.g. Science Research Council v Nassé [1980] AC 1028 at 1076 per Lord Edmund-Davies).

6. If a prima facie case is made out for disclosure, then as several of the speeches in Science Research Council v Nassé make plain, the court will first inspect the documents: (a) to ensure that inspection is indeed necessary (that very safeguard of itself making the court generally readier to accept that the threshold test for disclosure is satisfied) and (b) assuming it is, to see if the loss of confidentiality involved can be mitigated by: (i) blanking out parts of the documents, and/or (ii)

limiting the disclosure to legal advisors only …”

18. In CHC Ireland DAC -v- The Minister for Transport [2023] IECA 335 Noonan J. stated:

“16. As Clarke CJ pointed out in Tobin v Minister for Defence [2019] IESC 57, once relevance is established, necessity will be established on a prima facie basis, subject to any countervailing factors which should lead the court to decline disclosure. One such factor is confidentiality of the documents in issue although confidentiality in itself is not automatically a reason for declining disclosure. Where disclosure of documents, even those that are highly confidential, is necessary in the interests of justice to bring about a fair result, it will be ordered. As the court put it, “confidence must yield to the proper administration of justice.”

Proportionality

19. The requirement of proportionality requires a balancing of the necessity of the disclosure with the obligations of confidentiality. This balance is discussed by Clarke C.J. in Tobin v. Minister for Defence [2019] IESC 57 where he stated:

“7.11 In Independent Newspapers (Ireland) Ltd v. Murphy [2006] IEHC 276, [2006]

3 I.R. 566, I held that it would be disproportionate to order an immediate discovery of confidential documents in circumstances where it was unclear whether they would be relevant to the issues which will arise at the trial. Instead, an order was made requiring that the relevant documents were recorded and preserved in order to ensure that they would be available, if required, for production at trial, if it was established that they were necessary to the proper resolution of the case. This practice was similarly adopted in my ex tempore judgment handed down in Yap v. Children’s University Hospital (Unreported, High Court, Clarke J., 1st June 2006) and in Hartside Ltd v. Heineken Ireland Ltd. [2010] IEHC 3, and the same principles were subsequently followed by McGovern J. in Flogas Ireland Ltd. v. Tru Gas Ltd. & Ors.

[2012] IEHC259.

7.12 Those measures exist, of course, against the backdrop of the fact that confidentiality (as opposed to privilege) does not provide a legitimate basis for refusing to require disclosure of documents should they prove necessary to the proper administration of justice. But they do provide a warrant for the Court adopting appropriate measures to respect the importance of confidentiality by ensuring that it is only displaced when the production of confidential documentation proves truly necessary to the just resolution of proceedings.”

20. On the basis of the Affidavit evidence before me and the submissions of the DPC received by me, I am satisfied that the tests of necessity and proportionality are satisfied both as regards the documents which the PDC wishes to utilise in defence of the within proceedings and as regards the manner in which he wishes to utilise these documents. In this regard, I was referred by the PDC to Bristol-Myers Squibb Holdings Ireland Company v. Norton (Waterford) Ltd. Trading as TEVA [2024] IECA 143 (Costello J. as she then was) which considers the redaction of exhibits in a commercial context. In relation to the issue of anonymisation to preserve confidentiality and achieve proportionality in the present context, I have been provided by the PDC with proposals in this regard in the form of redacted copies of documents furnished by the third parties concerned. I have considered these redactions. Having considered these redactions/anonymisations, I am satisfied that they are comprehensive and appropriate subject to a minor number of additional alterations to the documents which I have made. I am, however, mindful that I have heard but limited submissions from the Applicant and the First Named Respondent and that I have not heard at all from the third parties whose protected disclosures are the subject of the within application. I am, therefore, not precluding further arguments being made in due course in relation to proportionate curtailments in respect of such documents whether on the application of the other parties to the present proceedings or the third parties concerned. I note that more restrictive steps have been introduced to protect confidentiality of exhibits in other cases and in this regard, I refer to the “confidentiality ring” referenced by Clarke C.J. in Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2020] IESC 56,

“8.7 In that latter context it is also worth noting that some additional comfort may be obtained if confidential materials are made available under a so-called “confidentiality ring.” A confidentiality ring allows for limited disclosure of otherwise confidential documentation and information. Where a confidentiality ring is in place, the confidential documents and information in question are ordinarily made available in confidence only to the parties’ legal advisors. In circumstances where the information in question relates to a scientific or technical matter, the confidentiality ring may be expanded to include experts in that field. Where a confidentiality ring is established, it is usually provided for in the order for discovery.”

CONCLUSION

21. I will make directions pursuant to section 16(2)(a) and section 16(2)(c) of the 2014 Act as amended permitting the use of redacted/anonymised documentation as provided to the Court (subject to the amendments made by the Court) on the basis that, without prejudice to any arguments which may be made in the context of any application made in the context of

(b) below, such use is necessary and proportionate subject to the following:

a. The Applicant and the First Named Respondent to have liberty to apply in respect of such disclosures in the event that issues arise therefrom in the context of the proceedings.

b. Prior to furnishing the documentation to the Applicant and the First Named Respondent and utilising same in the context of the Second Named Respondent’s defence of the within proceedings, the redacted/anonymised documentation intended to be exhibited shall be furnished to the relevant reporting persons (as required by section 16(3)(a) of the 2014 Act) together with an explanatory letter setting out the reasons for such usage (as required by section 16(3)(b) of the 2014 Act as amended)

and a copy of this judgment within 14 days of this date which persons shall have liberty to apply in this regard within 21 days of the date of such service.

c. In the event that no such application(s) are made, opposition papers shall be filed within 14 days of the expiry of the time set out above for such application(s) (being

35 days from the date hereof), such opposition papers in consequence to be filed within 49 days from the date hereof.

d. In the event of application by such persons or any of them, no such documentation shall be exhibited or otherwise disclosed until such application or application have been determined by the Court and the time limits for opposition papers shall be determined in the context of such applications.

e. I will list this matter, for mention only, on 28 October 2025 at 10.30 am for case management.

22. I will further grant liberty to apply, and I will reserve the costs of this application.