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Dept of Justice had 'shortcomings' but 'did not deliberately conceal' emails from Disclosures Tribunal

An independent report in how it handled materials given to the Tribunal was published this evening.

Current and former Ministers for Justice Charlie Flanagan and Frances Fitzgerald
Current and former Ministers for Justice Charlie Flanagan and Frances Fitzgerald
Image: Leah Farrell/Rollingnews.ie

Updated 10.45pm

AN INDEPENDENT REVIEW into how the Department of Justice identified and sent on relevant documents to the Disclosures Tribunal has found shortcomings in how the department acted but found no evidence to suggest “deliberate concealment or withholding of material”.

Despite this, it was found that emails “could and should have” been given over to the Tribunal much earlier than they were, and that there was “no meaningful explanation” as to why the email accounts of individuals in the department had not been searched earlier.

While Minister for Justice Flanagan welcomed the findings of the review, Sinn Féin justice spokesperson Donnchadh Ó Laoghaire said that it is “scarcely credible” that the emails of individuals were not searched.

The review by Michael Collins SC came on the back of a scandal which almost brought down the government in November of last year.

This was because it emerged that senior figures within the Department of Justice, including then-Minister Frances Fitzgerald, had email correspondence about the garda commissioner’s legal strategy at the O’Higgins Commission back in 2015, but that this documentation had not been sent to the Tribunal.

That legal strategy is the subject of one of the terms of reference for the Disclosures Tribunal, which is also tasked with investigating contact between government departments and the gardaí in relation to aspects of the alleged smear campaign against Maurice McCabe.

Although Fitzgerald’s resignation saved the government, an independent review was launched to establish why these emails hadn’t been found and sent to the Tribunal when it was first established at the beginning of 2017.

Findings

Michael Collins SC delved into the process whereby the department originally sent documentation to the Tribunal after it was initially set up in February 2017.

He found that when it came to which part of the department was responsible for finding the information relevant to the Tribunal, it was “simply assumed” that the Policing Division would handle this task.

This division went through documents it had on file and used search terms such as “McCabe”, “Bailieboro”, “Tusla” and “HSE” to try to find relevant documentation.

Collins said that one potential source of relevant information that was not included in the search was the email accounts of individual department officials.

“The reason why email in-boxes were not included as a potential source of relevant material at this time is unclear,” he said, noting that no evidence was found to suggest that the department “deliberately excluded or sought to exclude potentially relevant sources of information”.

Collins added he was satisfied the searches conducted were done in “good faith”.

He said: “However, it should also be pointed out that, with the benefit of hindsight, there is now a general acceptance among most officials interviewed in connection with this review, and by both the current and former Ministers, that the email inboxes ought to have been searched from the outset.

Had that been done some of the obvious search terms (e.g “McCabe”) would have identified the May 2015 and July 2015 emails which subsequently became the subject of controversy.

Collins said Minister Fitzgerald signed off on a letter in March 2017 to the Tribunal that said all relevant material had been identified and would be sent to the Tribunal as soon as possible.

“However, the submission did not identify for the Minister the sources from which the material derived, so the Minister had no knowledge that email accounts had not been searched for relevant material,” he said.

May 2015 email

In May 2015, the O’Higgins Commission got under way, and quickly an enormous row broke out between counsel for the garda commissioner and counsel for Maurice McCabe.

Nóirín O’Sullivan’s counsel said it was challenging McCabe’s credibility and motivation for making claims against the gardaí. McCabe’s counsel wanted to know on what basis they were challenging his credibility.

That same day, a number of emails were sent to senior figures within the Department of Justice about what was happening at the commission. This included Minister Fitzgerald and, a week later, her private secretary replied saying that she had “noted” the email.

These emails were not furnished to the Tribunal until November 2017. They didn’t appear in the original Policing Division review of documents, and only came out after the scandal that culminated in Frances Fitzgerald’s resignation.

Collins said that there was “no evidence to suggest that there is anything suspicious about the failure to find the email”.

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“Nonetheless,” he added, “it must be observed that there appears to be no particular system in place in the Department to ensure that emails are filed appropriately”.

The information considered in the course of this Review demonstrates that it is undoubtedly the case that the May 2015 Emails could and should have been furnished to the Tribunal prior to November 2017.

Collins said that the reason why it was wasn’t was due to how it was filed in 2015, and the nature of the search conducted not including individual email inboxes.

Conclusion

In the summary of his findings, Collins concluded that “certain shortcomings” were identified in how the department responded to the Tribunal’s initial call for information after being set up, but that there was no deliberate withholding of information.

As for not searching the individual email accounts for the relevant info, he said that “no meaningful explanation” had been given, other than that it “did not apparently occur to officials within the Policing Division to search such email accounts”.

He furthermore went on to emphasise “little communication at senior level” in the department regarding contact with the Tribunal, and “no formal oversight or periodic review of the work” carried out by the Policing Division.

It recommends that greater reliance on external IT support would address such problems in future, and that a new eDocs system to be introduced across the civil service could facilitate more efficient searching through documents for relevant information.

In a statement this evening, Minister for Justice Charlie Flanagan welcomed the report and said the department have taken “important lessons from this episode” and that measures are being put in place to ensure that there is no repeat of this again.

He added that the current structure of the department “does not support the effective management of the very broad and complex mandate” of some of the most challenging and sensitive issues facing Ireland, and that work was being done to reform it.

Reacting to the report, Sinn Féin’s Ó Laoghaire said that it “misses the point” by concluding “the review has identified no evidence of failure to comply” with orders from the Tribunal.

He also said it underlined the “dysfunction” within the Department of Justice.

He added: “It is also extraordinary that these documents were not found during the [...] scoping exercise, nor during preparation of documents to be sent to the Tribunal but were located after a number of parliamentary questions.”

Read: ‘The beginning of the end’: After McCabe, Tribunal now poised to enter most crucial weeks

Read: Decision to challenge McCabe credibility ‘entirely justified’, Tribunal hears

About the author:

Sean Murray

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