It was a 'public duty' to publish, says Kennedy

The Irish Timeseditor Geraldine Kennedy has told the High Court she concluded it was her "public duty" to publish an article stating that Taoiseach Bertie Ahern had received financial payments from businessmen when he was minister for finance in 1993.

She also said her "overriding obligation" in the public interest was not to identify or assist in identifying the source of that information.

In an affidavit, Ms Kennedy said she was satisfied the facts in the article of September 21st, 2006, were true and that it was a matter of "legitimate and significant public interest" that the head of the Government received substantial cash payments when he was minister for finance.

She had also become aware that Mr Ahern intended to take High Court proceedings to prevent the Mahon tribunal from proceeding with its investigation into the payments on the basis they related to private matters and were not within the terms of reference. In deciding to publish the report, she was conscious the payments were not within the tribunal's terms of reference "and that it might never enter the public domain".

Extracts from Ms Kennedy's affidavit were read yesterday on the third day of an action in which the Mahon tribunal is seeking a court order compelling Ms Kennedy and The Irish TimesPublic Affairs Correspondent Colm Keena to answer questions aimed at establishing the source of the information in the article.

The tribunal claims the article, written by Mr Keena and entitled: "Tribunal examines payments to Taoiseach", was based on a confidential letter sent by it during its private investigative stage to a businessman, Mr David McKenna.

The article reported that the tribunal was investigating a number of payments to Mr Ahern around December 1993 and that Mr McKenna was one of three or four persons contacted by the tribunal about payments totalling between €50,000 and €100,000.

When summoned before the tribunal on September 26th, both journalists refused to provide documents or answer questions which might identify the source of the information and the tribunal was told the documents had been destroyed.

The tribunal then brought its High Court proceedings which are being heard by a divisional High Court consisting of the president of the High Court, Mr Justice Richard Johnson, Mr Justice Peter Kelly and Mr Justice Iarfhlaith O'Neill.

Yesterday, Eoin McGonigal SC, for The Irish Times, said the article received extensive media coverage in Ireland and worldwide, raised very serious issues, almost caused the collapse of the government and led to a new Ethics Bill.

He read extracts from affidavits by Ms Kennedy and Mr Keena, both of whom stressed the importance for journalists of protecting sources of information. Ms Kennedy said the fundamental principle governing the work of all journalists is that sources of information coming forward in the public interest will be protected.

Journalists' reports based on confidential sources had, for example, led to the establishment of the beef tribunal and the present tribunal, and a failure to protect sources in this high profile controversy would strongly discourage future disclosures to newspapers of information of significant and legitimate public interest.

Such a development would be to the detriment of journalism, public life and the constitutional democracy of this country, she said. If she was to identify, or assist in identifying sources, it would have "a devastating effect" on her standing as a journalist and newspaper editor and on her ability to pursue her chosen profession.

In his affidavit, Mr Keena said he had received the information on which his article was based on September 19th, 2006, and discussed it with Ms Kennedy who advised him to be very careful in authenticating its content. He sought to verify the accuracy of the information over two days and ultimately felt confident the article could be published. The content of the article had since been confirmed as correct.

The contents of the report were of significant and legitimate public importance in view of the position of Mr Ahern at the time, and in 1993, and also in view of the prominence that the issue of payments to politicians has had in political debate since 1996, he said.

In submissions earlier, Mr McGonigal said he did not accept the document on which the article was based was confidential and also argued there was no trespass by The Irish Times on the internal workings of the tribunal.

The tribunal had no power to make orders requiring Ms Kennedy and Mr Keena to answer questions aimed at disclosing the source of the article, he said. The tribunal could act only within its terms of reference which did not provide for an inquiry into sources.

The tribunal had not produced any evidence to show the publication of the article had hindered its work, and the information relating to Mr Ahern was now contained in a brief released by the tribunal last April for its Quarryvale II module, he added.