Cliff Taylor: Welcome to Confidentiality Club gentlemen

Fight Club was the 1999 film starring Brad Pitt and involving an underground boxing club which no outsider could find out about. The first club rule was: "You do not talk about the Fight Club." The second was :"YOU DO NOT talk about the Fight Club."

It’s the same deal with the people’s banking and legal information in Ireland. You can see the sense in this, up to a point. But just where is that point? Because as we stand the Confidentiality Club rules seem to be able to tie us into the most extraordinary knots.

Let’s take a few scenes from the IBRC inquiry fiasco we have been watching this week. We have a Government which set up a Commission of Investigation and shortly afterwards the Department of Finance told it that a lot of the information it was going to give it was, its view, confidential. You might have the legal power to override confidentiality and use this in your inquiry, was the message to the sole commission member, Mr Justice Brian Cregan, but that is a matter for you to decide.

Did the Government realise from day one that the inquiry would run into trouble, or was it a poorly thought out decision taken under huge pressure to “do something” about the then bubbling controversies of Siteserv and other IBRC transactions? Or both?

The Fight Club rules of Irish confidentiality were emphasised even more forcefully to the commission by the IBRC Special Liquidators.

They said the information they were giving to the commission was confidential and attached a page outlining this legal view with all the different files they sent to it, including more than 180,000 pages on the controversial Siteserv transaction.

In contrast to the Department of Finance, they said they did not believe that the commission had the power to override this confidentiality in the public interest.

The judge, Mr Justice Cregan, agreed. He said that the 2004 legislation used to set up the inquiry did not give him any power to conduct a balancing act between confidentiality on one side and the public interest on the other. A layperson’s reading of the Act would suggest that this is correct.

Whatever the intention when the Commission was set up, we will now be lucky to see a report before the end of the next government’s term, never mind this one. And we are meanwhile in some kind of confidentiality netherworld.

Those in receipt of a draft interim report written by the commission - which largely reiterates what was said in the published legal determinations by Mr Justice Cregan – cannot even acknowledge its existence, lest they be struck down by some kind of legal thunderbolt. Because it is “confidential.”

And YOU DO NOT even acknowledge the existence of something on which the legal magic dust of confidentiality has been sprinkled.

Investigated

It goes on. The former IBRC directors do not even know the names of the 38 transactions being investigated by the Commission – or due to be investigated, I should say.

The commission has judged that this information in itself is confidential and cannot even be shared even with those in office in the IBRC at the time. Nor can they approach anyone involved in any of the deals, as this could also involve going into another confidentiality cul-de-sac.

And, as the late comedian Frank Carson was wont to say, “there’s more”.

All Freedom of Information requests regarding the key issues are frozen, subject to a section in the 2004 Act which exempts anything being examined from FOI.

FOI’s to TD Catherine Murphy and a number of newspapers have played a key role in raising questions about IBRC and about its relationship with the government. Now this route is closed, too.

There may be political controversy over the IBRC inquiry in the run up to the election, but we will learn no more about what happened.

This is unfair to all sides – the taxpayers who want some questions answered, those involved in the deals and the former IBRC directors who not unreasonably say there is now a cloud hanging over their names which is not going to be lifted any time soon.

If all this involved a case before the courts, all the information would emerge under discovery. If there was a Tribunal (and goodness knows we don’t need another one of those), then it would have more powers to access information and use it, though could still run into flak on banking information.

But the commission is completely stuck in the mud of confidentiality and while some way may be found around this it will undoubtedly involve huge delay – and run the risk of legal challenge.

Questions

I have no idea whether there is much to discover in the entrails of IBRC. We all know the questions raised by the summer revelations, but the answers remain unclear. But the Confidentiality Club rules mean we are not going to find out any time soon. If at all.

It is customary for a columnist at the end of a learned piece to put forward a solution, a way out of the whole mess. But I have to confess that, on this one, I haven’t got a clue. Are we just afraid of the sight of a lawyer shouting “confidential” in this country, or is it all just more complicated? Whatever the answer, the inability to even conduct a basic investigation in the public interest seems absurd.

The errant mortgage holder getting thrown out of their home may have their financial affairs aired in open court, but for the big players confidentiality still rules okay.