Clerk of Dail Éireann, Oireachtas Service and the Irish Mail on Sunday

The Press Ombudsman has decided to uphold a complaint made by the Parliamentary Legal Adviser to the Houses of the Oireachtas on behalf of the Clerk of Dáil Éireann, Mr Kieran Coughlan, and the Oireachtas Service, that an article published in the Irish Mail on Sunday on 20 February 2011 breached Principle 2 (Distinguishing Fact and Comment) of the Code of Practice for Newspapers and Magazines. A number of other complaints about the article were not upheld, and it was not possible for him to decide on one of the complaints made about the same article under Principle 1 (Truth and Accuracy).

The article concerned was headlined ‘Dáil sentinel kills off expenses complaint’ and reported that the Clerk of the Dáil had “effectively killed off an investigation into expenses claims for work ... that was never done.”

The article went on to detail the newspaper’s investigation of the handling, by the Clerk of the Dáil and the Oireachtas Service, of a complaint from a member of the public about an expenses claim by a member of the Oireachtas. The Clerk of the Dáil and the Oireachtas Service complained, inter alia, that it was implicit in the article that there was some action or inaction on their part which had the intention of impeding the progress of an investigation and that, in this connection, an implication that they did not properly carry out their public duties. The newspaper argued that the detail of its investigations contained in the article clearly demonstrated that the article was not in breach of the Code of Practice and that the article’s headline was truthful and accurate.

The complainants sought the publication of an apology and a retraction of the article. The newspaper offered to publish a right of reply from the Clerk, which he turned down, and following the intervention of the Office of the Press Ombudsman, the newspaper offered to publish a clarification in relation to some of the alleged inaccuracies in the article. However, it said that it stood over its headline, on the basis of its very strong belief that the killing off of the complaint was a result of the actions of the Clerk of the Dáil. The offer of a clarification was rejected by the complainants on the basis that it did not correct what they said were the significant misleading statements and inaccuracies in the article.

The core statements contained in the article’s headline and lead paragraph, which were reported as facts, were clearly conjectures by the newspaper based on its journalistic investigation.

As a conjecture may not, under Principle 2 of the Code of Practice, be reported as fact, the complaint about this article under this Principle is therefore upheld.

A number of other complaints were not upheld.

A complaint under Principle 1 that the article stated or implied that the actions of the Clerk of the Dáil and the Oireachtas Service hindered the complainant and that the complainant met a “brick wall” was not upheld, as the reference to a “brick wall” was made and duly attributed to the member of the public who made the original expenses complaint to the Clerk of the Dáil. While it is a general requirement of Principle 1 that publications must strive at all times for truth and accuracy, it would be unreasonable to expect them to check, before publication, the factual accuracy of any and every general allegation made by a named third party in a news story, such as this one.

The Clerk also complained that the article stated or implied that he was uncooperative in dealing with the complainant and with the newspaper. The article did not state that the Clerk was uncooperative in his dealings, but neither did it publish his full response to the questions posed to him by the newspaper, which would have included his explanation that he was legally precluded from responding to some of the questions posed. This omission, while understandably a cause of complaint, was not in the circumstances sufficiently misleading to amount to a breach of Principle 1 of the Code.

There was no evidence that the information published was obtained through misrepresentation or subterfuge, as would be required to support a decision that it constituted a breach of Principle 3.

Nor was there evidence that the newspaper knowingly published matter based on malicious misrepresentation or unfounded accusations, or that it did not take care in checking facts before publication, as would be required to support a decision that Principle 4 of the Code was breached.

No decision can be made about a further complaint under Principle 1of the Code about the accuracy or otherwise of the article’s description of the consequences of the actions taken by the Clerk of the Dáil, and whether or not his actions killed off the complaint.

Following considerable correspondence between the Office of the Press Ombudsman, the Parliamentary Legal Adviser and the newspaper, there were no significant differences between the two parties about the nature of the actions taken by the Clerk of the Dáil and the Oireachtas Service in handling the complaint. However, what was strongly contested in this context was the interpretation of the Clerk’s responsibilities under statute, and whether or not the actions he took in line with his view of these responsibilities, as a consequence, ”killed off” the complaint, as reported by the newspaper. On these matters the complainants and the newspaper remained completely opposed.

A decision on these issues would require a definitive interpretation of an Act – and possibly of more than one Act - of the Oireachtas, a matter which is outside the scope and the remit of the Press Ombudsman. It is therefore not possible for the Press Ombudsman to make a decision on this part of the complaint.

15 July 2011

The complainant appealed the decision of the Press Ombudsman to the Press Council of Ireland.