Facts:
Order 31, r. 15 RSC entitles a party to proceedings to notify the other party in whose affidavit reference is made to a document, to produce that document for inspection and permit copies thereof to be taken. If the other party fails to comply, he may not rely on the document(s) in question in evidence, unless he can satisfy the court that he had some sufficient cause or excuse for not complying.
Order 31, r. 18 empowers the court to make an order for inspection in such place and in such manner as it may think fit, but it shall not make an order if “it is not necessary either for disposing fairly of the cause or matter or for saving costs”.
The applicant applied to the Minister for Justice for a certificate of naturalisation and his application was refused, no reasons being provided. He was granted leave by the High Court to apply for judicial review of the refusal on the basis that the refusal to disclose reasons was unlawful.
Opposition papers were filed by the Minister and the verifying affidavit disclosed the existence of certain documents, in respect of which the applicant applied for inspection pursuant to O. 31, r. 18 RSC. They included a confidential note attached to the recommendation on the application for naturalisation which had been furnished to the Minister. The note was said to refer to certain information concerning the applicant which had been provided to the Minister in the strictest confidence. The respondent refused to disclose them on the basis that they were privileged by reference to public interest and the security of the State. At its request, the court was furnished with three documents over which privilege had been claimed in order to assist in its determination of the relevance, if any, of them to the issues that arose between the parties.
The parties were agreed that the legal principles applicable to the determination of whether a public interest privilege was properly asserted were as set out in Ambiorix v. Minister for the Environment (No. 1) [1992] 11.R. 277, which established that where a conflict arose during the exercise of judicial power between the aspect of public interest involved in the production of evidence on the one hand, and the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State on the other, it was the judicial power which would decide which public interest would prevail.
The court noted that the affidavit evidence on behalf of the Minister explained that, when examining applications for naturalisation, rigorous checks were carried out, which included obtaining information from external agencies, including security agencies. This information was provided on a strictly confidential basis and the Minister was said to be dependent upon the goodwill of the external agencies currently providing it. In order to ensure the continuity of such information, the Minister had decided that it had to be kept confidential and would not be disclosed to an applicant whose application might be refused as a result of it. It was said withal that information obtained in the course of the examination of an application could relate to issues of national importance including national security, which would render it inimical to the State’s own interest to disclose it to a disappointed applicant. The Minister maintained that to disclose to the applicant the reasons or the specific nature of the reasons would be inimical to the interests of the State. In the light of the contents of the refusal letter, the court took this to mean that even to describe the reason and failure to disclose as being related to the security of the State or the defence of the State or international relations, or that it was based on confidential information from a reliable source, would compromise the interests of the State.
The court observed that, in the instant case, no reasons related to the public interest had been disclosed even in the most general terms. It noted that the provisions of s. 15(1)(b) of the Irish Nationality and Citizenship Act 1956, as amended, enabled the Minister to decline to grant a certificate of naturalisation if he was not satisfied that an applicant complied with the requirement that he be of “good character”. It pointed out that that provision had not been furnished as the basis for the refusal, notwithstanding the Minister’s acceptance that matters of good character provided the basis upon which the rigorous checks were carried out.
The Minister submitted that disclosure of the documents was not relevant to the determination of question of whether the refusal to give reasons for refusing the applicant’s application was unlawful because, inter alia, it prevented him from examining whether the refusal was lawful and impaired him in bringing an effective application in the future. The court, however, observed that the documents which it had seen were clearly relevant to a consideration of the refusal and the applicant’s ability to challenge it, and that it was difficult to see how he could be expected to address in any future application the issues raised against him if he simply had no knowledge of them, even in general terms.
The court permitted inspection of some of the documents.
Reasoning:
The court acknowledged the State’s legitimate interest in the area of naturalisation and the desirability of maintaining confidentiality in order to ensure that external agencies would continue to provide it with information when assessing applications for declarations of naturalisation, noting that that was an essential feature of the process which ultimately enabled the State to protect the process from abuse. It observed that the information obtained might be from confidential sources, the exposure of which might compromise their safety and/or the effective operation of the agencies from which the information was obtained. It noted that, in some cases, the protection of the information would be of vital importance to the State.
The court drew an analogy with the use of confidential information and intelligence by An Garda Síochána in criminal proceedings, such as where members of the force, having formed a requisite opinion, obtain or issue a warrant to search homes or business premises or effect an arrest, in circumstances where the opinion was based entirely or partly upon confidential information received from a usually reliable source. It noted that the reasons for the formation of the requisite opinion were often explored in open court during the course of a trial and could become the subject of challenge and cross-examination, subject to claims of confidentiality or public interest or informant privilege. It pointed out that even that limited ability to challenge the basis of an opinion formed relying upon confidential information, was unavailable to the applicant in the instant case. However, it noted that its availability in criminal trials demonstrated that it was possible to formulate and scrutinise a reason for an opinion whilst protecting the confidential source from disclosure.
The court held that the three documents furnished to were clearly relevant to the determination of whether the refusal to furnish reasons for the refusal of a grant of a certificate of naturalisation to the applicant was unlawful, and whether the decision to refuse the certificate itself was unlawful. They contained information which might directly or indirectly enable the applicant to advance his case or damage that of the Minister.
Turning to the first document, a note concerning the applicant’s application for a certificate of naturalisation and containing a recommendation for the Minister, the court held that it was relevant and that inspection did not pose any risk to the public interest.
The second document was a confidential note referring to certain information concerning the applicant which had been provided to the Minister in the strictest confidence. The court was satisfied that it was a confidential document and that the asserted claim of privilege should apply to a considerable portion of its contents. It held that there was a public interest in maintaining the confidentiality of the information and information-gathering process referred to in it, but that elements of it, disclosure of which it held would be inimical to the interests of the State, could be safely redacted. The court allowed inspection of the document and specified the redactions which should be made to it.
The third document formed part of, and was attached to, the second document. The court was satisfied that it was confidential and, having considered its contents, that it was in the public interest that it and its contents remained confidential.
Decision:
The court accordingly permitted inspection of some of the documents sought by the applicant.
