INM and ODCE in court row over late disclosure of data breach document
Media group says it lacked evidence against former chair
The corporate watchdog has rejected claims by Independent News & Media (INM) that it was deprived of critical information about a major suspected data breach at the company.
A row over the matter emerged as a major issue during judicial review proceedings taken by INM in its bid to quash a decision by the Office of the Director of Corporate Enforcement (ODCE) to apply to the High Court for the appointment of inspectors to the company.
If INM is successful, it would mean ODCE director Ian Drennan would not be able to press ahead with the application.
He wants inspectors to look into a range of corporate governance issues, including the suspected data breach.
INM says the failure of the ODCE to disclose the existence of a key document meant the media group was not in a position to challenge assurances given by then chairman Leslie Buckley about the "interrogation" of company data.
In 2014, Mr Buckley directed that a third-party company be given access to INM's data back-up tapes. Mr Buckley claimed this was done as part of a cost-cutting exercise where he was looking for information about a contract. But his explanation was undermined by the discovery of a spreadsheet that suggested the names of 19 people, including journalists, were searched for in the data.
INM has said the ODCE had the spreadsheet since October 2017, but did not tell the company about it until it went to the High Court on March 23 seeking the appointment of inspectors.
However, barrister Brian Murray SC, for the ODCE, said INM's position on the matter "was at least questionable".
Mr Murray said it was "absolutely wrong" of INM to say it was deprived until March of information that would have allowed it to challenge Mr Buckley. He pointed to a number of letters INM received in August 2017 from Donal Spring, solicitor for then INM chief executive Robert Pitt, who made a protected disclosure that month to the ODCE.
Mr Murray said the correspondence outlined that Mr Pitt had very serious concerns that large indiscriminate pieces of data, potentially including emails related to employees and others, had been accessed.
He said Mr Pitt exhorted INM's board to investigate the matter fully and to contact the Data Protection Commissioner.
However, INM counsel Paul Gallagher SC hit back, saying the spreadsheet was a "critical" document "which put a very different complexion on things".
Without such evidence, it would have been an enormous step to accuse Mr Buckley of telling "an outright lie", he said.
Earlier, Mr Murray rejected INM's arguments that there should have been consultation with the company before the inspectors' application was filed.
Mr Murray said there was no legal obligation to consult the company. He claimed the case made by INM was "unstateable" and he criticised what he described as "the falsity and absurdity" of INM's arguments.
Mr Murray said the Oireachtas had vested powers in the ODCE to bring such applications to the courts and had not imposed a requirement for consultation before doing so.
He said INM had an untrammelled right to put whatever information it wanted before the court in opposition to the ODCE's application. If INM's case proved founded, he said, it would raise fundamental issues for the courts and the administration of justice.
Mr Justice Seamus Noonan will rule on the matter later.