Tuesday 15 October 2019

A-G's office forwarded letter sent in confidence

Whistleblower email sent to minister despite earlier promise

Colum Kenny EXCLUSIVE

Earlier this year, the Attorney-General's office promised one of the garda whistleblowers in writing that any correspondence received from him would be "handled in strict confidence".

Yet the Attorney-General's office later informed the man that a letter he had sent headed "private and confidential" was being forwarded to the Garda Commissioner and to Minister for Justice Alan Shatter despite his protests.

The Attorney-General's office now says that this was because the allegations "were of such a serious nature".

On January 7, the whistleblower involved emailed the Attorney-General's office.

In the email, he wrote: "I am a public servant. I need to forward an email to your office but I need to be sure that it will remain private and confidential before I can send it."

That same day he received a reply from the Attorney-General's Registry Unit, stating: "I can confirm that, as a Government Office, any correspondence received will be handled in strict confidence."

The following day the whistleblower sent a substantial emailed letter and attachment for the attention of the Attorney-General Maire Whelan, heading it "Private and Confidential."

This outlined his frustration with whistleblower legislation and expressed concerns about what he perceived as attempts to gag him.

He told the Attorney-General: "I never disclosed any sensitive data to anyone except the above named."

Those named by him were the gardai, Enda Kenny's office, the office of the Minister for Transport, the Data Protection Commissioner and the official Confidential Recipient for garda whistleblowers.

On January 17 a member of the Attorney-General's staff, replying on behalf of the Attorney-General, advised him: "The concerns you raised are all matters which come within the remit of the Garda Commissioner and the Minister for Justice and Equality.

"I therefore propose sending a copy of the email you sent to the Attorney-General to the Garda Commissioner and to the Minister for Justice and Equality."

Analysis page 12

Shocked by this reply – but noting the word "propose" – the whistleblower immediately objected by email.

He asked "that this commitment and promise be honoured" and requested again that the Attorney-General would "not disclose my email to others".

On January 21 last, he received a reply referring to the promise of "strict confidence" which "means we do not disclose correspondence to the public, journalists etc".

The reply added that, "Under the Constitution the Attorney-General is the legal adviser to the Government," and that, like any other legal adviser, is required to disclose to the Government "information concerning its functions which may come to her".

Therefore, wrote the Attorney-General's office, "we cannot withhold from our clients information relevant to the discharge of their functions".

This letter concluded: "I am obliged, therefore, to proceed in the manner set out in my letter of the January 17, 2013."

Responding last week to a query from the Sunday Independent, the Attorney- General's office said simply: "A communication was received by the Office from a public servant which contained allegations of such a serious nature that they had to be sent to the Garda Siochana and referred to the Minister."

At no point was the whistleblower aware, nor was he told that in 2006 the Attorney-General's office had been deeply involved in providing legal advice to the gardai in respect to the exercise of discretion by members of the force who wished to set aside penalty points.

As emerged only last week in a report published by Minister for Justice Alan Shatter, the 2006 advice from the Attorney-General had upheld the exercise of a broad garda discretion, notwithstanding counsel for the Attorney-General acknowledging that there was no explicit statutory basis for such discretion.

A photocopy of that counsel's advice in 2006 forms an appendix to one of the two reports on penalty points as published by Mr Shatter on Wednesday.

Someone wrote on this photocopy, before it was published last week, the date "8 January 2013".

That was the day after the whistleblower first contacted the Attorney-General.

It is understood that, since January, neither the Attorney- General nor the gardai nor the Department of Justice has responded substantively that the whistleblower's letter to the Attorney-General that was dated January 8, 2013.

Irish Independent

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