A Procedural Framework for Court‑Ordered Use of Redacted Protected Disclosure Materials under s.16(2) of the Protected Disclosures Act 2014 (as amended)

Introduction

This High Court judgment (O’Rourke v Minister for Defence & Ors, [2025] IEHC 518, Jackson J) addresses a practical but legally sensitive question at the intersection of whistleblower confidentiality and fair litigation: when, and how, may the Protected Disclosures Commissioner (PDC) exhibit confidential materials relating to third-party reporting persons in defending judicial review proceedings?

The applicant challenges the PDC’s decision to transmit her protected disclosure to the Secretary General of the Department of Defence rather than accepting it for investigation himself. She alleges, among other things, that her allegations implicated the Department (and the Secretary General) in wrongdoing, rendering the transmission contrary to the nemo iudex principle and the fair procedures guaranteed by the Constitution and the Directive (EU) 2019/1937.

The PDC, preparing to defend the judicial review, received eight reports from seven reporting persons in a brief period in January 2024. He identified overlapping themes, “boilerplate” or “template” passages, and undertook an aggregate and individual analysis to identify appropriate recipients for each allegation, including bodies such as the Medical Council and the Legal Services Regulatory Authority. To explain the context and the analytic process behind his transmission decisions, the PDC sought the Court’s directions to exhibit redacted/anonymised copies of these third-party reports and related documents.

The legal issue is framed by section 16 of the Protected Disclosures Act 2014 (as amended by the 2022 Act) and Recital 82 of the EU Whistleblowing Directive: while the identity of reporting persons must be safeguarded, disclosure can occur where “necessary and proportionate” in investigative or judicial contexts, including to protect rights of defence. Jackson J was asked to calibrate that balance in a live judicial review, before the defence is filed, and to set workable directions protecting both confidentiality and the integrity of the Court’s review function.

Summary of the Judgment

Jackson J grants directions under section 16(2)(a) and 16(2)(c) of the 2014 Act permitting the PDC to exhibit redacted/anonymised documents concerning third-party protected disclosures in defending the judicial review. The Court holds that:

• The statutory exceptions to the confidentiality obligation under s.16(1)—namely disclosure that is a necessary and proportionate obligation in judicial proceedings (s.16(2)(a)) or otherwise required by law (s.16(2)(c))—are engaged on the facts.
• Applying discovery jurisprudence on “necessity” and “proportionality,” the proposed use is necessary for a fair defence and proportionate given comprehensive redactions/anonymisations and further safeguards.
• The PDC’s redactions are largely appropriate, subject to minor adjustments ordered by the Court; further proportional curtailments may be argued by the parties or the third-party reporting persons in due course.
• Before any disclosure to the litigants, the PDC must notify the relevant reporting persons under s.16(3)(a)–(b) with reasons and furnish a copy of the judgment, allowing them 21 days to apply; if no applications ensue, opposition papers are to be filed within a set timetable.
• A confidentiality ring may be used where necessary; the Court expressly reserves the possibility and grants liberty to apply to all parties and to the affected reporting persons.

The Court also grants the applicant and the Minister liberty to apply after seeing the defence materials, recognising they could not fully address redactions prior to production.

Analysis

1. Precedents and Authorities Cited

The Court grounds its approach to “necessity” and “proportionality” in well-developed discovery jurisprudence, adapting it to the statutory language of s.16(2).

• Recital 82, Directive (EU) 2019/1937: The Directive recognises that protecting the confidentiality of reporting persons is an “essential ex ante measure to prevent retaliation” but permits disclosure where “necessary and proportionate” in investigations or judicial proceedings, notably to safeguard rights of defence. This EU law context informs a narrow and calibrated exception to the default confidentiality rule.
• Portakabin Ltd v Google Ireland Ltd [2021] IEHC 446: Allen J summarised the purpose and structure of the 2014 Act, highlighting s.16’s confidentiality duty as part of a suite of protections for reporting persons. This frames s.16 as a robust default, to be displaced only within clearly defined statutory exceptions.
• Wallace Smith Trust Co v Deloitte [1997] 1 WLR 257, approved in Cooper Flynn v RTÉ [1993] 1 I.R. 375: Simon Brown LJ’s classic statement on “necessity” in disclosure—litigious advantage, non-availability from other sources, and non-oppressiveness—guides when it is “necessary” to order disclosure. The Court also emphasised judicial inspection and redaction/limited disclosure (including to legal advisors only) as mitigation tools.
• CHC Ireland DAC v Minister for Transport [2023] IECA 335 (Noonan J, drawing on Clarke CJ in Tobin): Once relevance is established, necessity follows prima facie, subject to countervailing factors. Confidentiality alone does not trump necessary disclosure: “confidence must yield to the proper administration of justice.”
• Tobin v Minister for Defence [2019] IESC 57 (Clarke CJ): A structured proportionality analysis supports staged or conditional disclosure of confidential documents. Courts can record/preserve materials and defer disclosure until necessity is established. Confidentiality as such is not a standalone bar, but warrants the least intrusive means of disclosure.
• Independent Newspapers (Ireland) Ltd v Murphy [2006] IEHC 276; Yap v Children’s University Hospital (HC, 1 June 2006); Hartside Ltd v Heineken Ireland Ltd [2010] IEHC 3; Flogas Ireland Ltd v Tru Gas Ltd [2012] IEHC 259: These decisions exemplify the practice of managing confidential materials through staged disclosure and preservation orders to avoid premature or unnecessary exposure.
• Bristol-Myers Squibb Holdings Ireland Co v Norton (Waterford) Ltd t/a TEVA [2024] IECA 143 (Costello J): Confirms the appropriateness of redactions in exhibits to balance relevance with commercial confidentiality—by analogy, a fit-for-purpose method to protect whistleblower identity while enabling fair litigation.
• Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2020] IESC 56 (Clarke CJ): Recognises “confidentiality rings” as a method for restricted disclosure to legal advisors (and, where necessary, experts), offering additional comfort when dealing with particularly sensitive materials.

2. Legal Reasoning

The Court’s reasoning proceeds in three connected stages: statutory interpretation, the importation of discovery principles to s.16(2), and case-specific safeguards.

• Statutory starting point: s.16(1)–(3) of the 2014 Act. Section 16(1) imposes a robust duty not to disclose the identity of a reporting person, or any information from which identity may be deduced, without explicit consent, save to persons necessary for handling reports. Section 16(2) carves out narrow exceptions, including where disclosure is a necessary and proportionate obligation in judicial proceedings (s.16(2)(a)), and where disclosure is otherwise required by law (s.16(2)(c)). Section 16(3) imposes a pre-disclosure notification obligation: before proposing to disclose identifying information, the person must inform the reporting person and explain reasons.
• Necessity. Drawing on discovery jurisprudence, the Court accepts that the PDC must be able to place before the Court the context in which he made transmission decisions. That context includes the contemporaneous receipt of multiple overlapping reports using “boilerplate” passages and the PDC’s comprehensive analysis identifying tailored recipients. The materials are not sought to litigate the third parties’ substantive allegations, but to demonstrate the reasonableness of the PDC’s decision-making process—a central issue in the judicial review. Given the duty of candour and the need for the reviewing court to have all relevant information, disclosure—albeit in redacted form—is “necessary” within s.16(2)(a).
• Proportionality. The PDC proposes extensive redactions/anonymisation, acknowledging that the identity of the seven third-party reporting persons is irrelevant to the defence. The Court reviewed the redactions, made minor additional alterations, and found the approach “comprehensive and appropriate.” Proportionality is further supported by purpose limitation (use solely to explain decision-making context), the possibility of additional curtailments upon argument, and the availability of confidentiality rings if required.
• Procedural safeguards and rights of third parties. The Court requires strict compliance with s.16(3). Even where identity will be redacted, if there is any risk that the information could directly or indirectly identify a reporting person, pre-disclosure notice and reasons must be provided. The judgment gives third-party reporters liberty to apply within 21 days to challenge the proposed use or redactions. This ensures that whistleblowers retain agency and procedural protection notwithstanding the s.16(2) exception.
• Minimal intrusion and efficiency. The Court endorses non-joinder of the third-party reporting persons to avoid delay and unnecessary complexity, noting their identities are not relevant to the PDC’s defence. The judgment sets a case-managed timetable, balancing fairness to the applicant and the Minister against the reporters’ opportunity to be heard on confidentiality.
• Open justice and administration of justice. The Court affirms that confidentiality must yield where disclosure is truly necessary to resolve litigation fairly, but only to the extent required and through the least intrusive means. This mirrors the Supreme Court’s approach in Tobin and reflects Recital 82’s rights-of-defence rationale.

3. The Directions: A Structured, Reproducible Roadmap

The judgment supplies a concrete procedural template for similar cases:

• Permission is granted under s.16(2)(a) and (c) to exhibit redacted/anonymised third-party materials as proposed (with Court-ordered amendments), on the basis that doing so is necessary and proportionate.
• Liberty to apply: the applicant and the Minister may raise issues after seeing the materials; third-party reporters are given a 21-day window to apply after notice.
• Pre-disclosure notice (within 14 days): the PDC must furnish the intended redacted materials, an explanatory letter stating reasons (s.16(3)(b)), and a copy of this judgment to the relevant reporting persons (s.16(3)(a)).
• Standstill: no disclosure to the applicant/Minister or exhibition in affidavits until the third-party application period has expired without challenge, or any challenges have been determined.
• Timetable: if no applications are made, opposition papers are to be filed within 14 days after expiry of the third-party window (i.e., within 49 days of the judgment).
• Case management: matter listed for mention on 28 October 2025; costs reserved.
• Additional protections: the Court acknowledges possible use of confidentiality rings to further minimise dissemination if necessary.

4. Likely Impact

• For the PDC and prescribed persons under the 2014 Act: The decision provides a clear pathway to rely on third-party protected disclosure materials in litigation, so long as the s.16(2) “necessary and proportionate” threshold is met and s.16(3) notification obligations are rigorously observed. It recognises the practical reality that the PDC’s decisions may be formed in the context of multiple overlapping disclosures and that this context can be essential to defend reasonableness.
• For whistleblowers (reporting persons): The ruling reinforces that confidentiality is robust but not absolute. Crucially, it embeds procedural protections: comprehensive redactions/anonymisations, pre-disclosure notice with reasons, a defined window to challenge, and the potential for confidentiality rings. These measures reduce the risk of chilling effects while preserving the integrity of court processes.
• For public law litigation more broadly: The judgment harmonises statutory whistleblower confidentiality with settled discovery principles, signalling that courts will deploy tailored measures—redactions, staged disclosure, confidentiality rings—to ensure fair adjudication while respecting sensitive interests. It will likely serve as a reference point for regulators and departments defending decisions that were informed by protected disclosures.
• For future case management: The Court offers a procedural script that can be replicated: an application for directions early in the proceedings; judicial scrutiny of redactions; s.16(3) notifications; standstill periods; and tight timetables. This should promote predictability, reduce satellite disputes, and protect against inadvertent identifier disclosure.

Complex Concepts Simplified

• Protected disclosure (whistleblowing): A report by a worker of relevant wrongdoing made under the 2014 Act. The Act protects reporters from penalisation and, critically, mandates confidentiality of their identity and any information from which identity can be deduced.
• Identity vs. identifying information: The Act protects not only the name or direct identity of a reporting person, but also any details that could indirectly reveal who they are (e.g., job title in a small unit, dates, unique events).
• Necessary and proportionate (s.16(2)(a)): Disclosure in litigation must be truly needed to resolve the case fairly (cannot be obtained otherwise, relevant to the issues) and must be done in the least intrusive way (e.g., with redactions, limited audience, or staged production).
• Duty of candour: A public authority defending judicial review should assist the court with full and fair disclosure of relevant information, even if it does not help its case. This supports the “necessity” of exhibiting contextual materials showing how decisions were made.
• Confidentiality ring: A court order allowing access to confidential materials only by a limited group (typically legal advisors, sometimes experts), who are bound by strict non-disclosure obligations. It minimises dissemination while permitting effective litigation.
• Liberty to apply: A standard case-management device allowing parties (and here, also the reporting persons) to return to court to seek adjustments or further orders if issues arise (e.g., redaction adequacy, scope of use).
• Nemo iudex in causa sua: The principle that one should not be a judge in one’s own cause. The applicant invokes it to argue that the Secretary General, being implicated by her allegations, was not an appropriate recipient. That merits issue remains for the substantive judicial review.
• Purpose limitation: Even where disclosure is permitted, the materials may be used only for a defined purpose—in this case, to explain the PDC’s decision-making context, not to litigate the truth of third-party allegations.

What the Court Did Not Decide

• The merits of the applicant’s judicial review, including whether the PDC lawfully transmitted the applicant’s disclosure to the Secretary General, remain to be determined.
• No finding was made on the substantive truth or significance of the “boilerplate” or “template” passages across the multiple reports; their relevance at this stage is limited to understanding the PDC’s reasoning process.
• The Court did not impose a confidentiality ring but indicated its availability if needed.

Practical Guidance Emanating from the Decision

• For the PDC/prescribed persons: Prepare early applications for directions where litigation necessitates reliance on protected disclosures. Propose robust redactions removing both direct and indirect identifiers; explain the analytic relevance, purpose limitation, and why alternatives are inadequate.
• For litigants seeking disclosure: Demonstrate necessity through relevance to the issues and non-availability by other means; propose proportionate safeguards (redactions, staged disclosure, confidentiality ring).
• For reporters: Engage with s.16(3) notices; consider whether redactions risk indirect identification; avail of the 21-day application window if needed; seek additional curtailments or a confidentiality ring where warranted.
• For the Court: Employ a stepwise approach: inspect samples, require tailored redactions, impose pre-disclosure notice, provide a standstill, and consider limited-access orders. Keep tight timetables to minimise delay while protecting confidentiality.

Conclusion

O’Rourke v Minister for Defence & Ors marks an important development in the operationalisation of s.16 of the Protected Disclosures Act 2014 (as amended). The High Court confirms that the confidentiality of reporting persons, while fundamental, yields where disclosure is demonstrably necessary and proportionate in litigation—particularly to enable a fair review of a public decision-maker’s reasoning—provided robust safeguards are in place.

The judgment does more than apply principle; it supplies a procedural blueprint: comprehensive redactions, judicial scrutiny, pre-disclosure notice with reasons to reporting persons, a standstill for challenges, case-managed timelines, and the availability of confidentiality rings. In doing so, it balances the statutory promise of confidentiality with the imperatives of open justice and effective judicial review.

The key takeaway is a nuanced but clear rule: protected disclosure materials can be used in court where, and only where, their use is necessary to the issues in dispute and proportionately contained, with reporting persons kept informed and empowered to object. This decision will guide regulators, departments, and courts in future cases that straddle whistleblower protection and the fair administration of justice.