From top (from left): former chairman of INM Leslie Buckley; INM’s largest shareholder Denis O’Brien; IT expert Derek Mizak; former INM CEO Robert Pitt
There were a number of developments in the INM data breach story over the weekend.
Earlier this year, the Office of the Director of Corporate Enforcement (ODCE) asked the High Court to appoint inspectors to investigate Independent News and Media (INM), the largest shareholder of which is Denis O’Brien, following protected disclosures made to it by former Group CEO of INM Robert Pitt and former Group CFO Ryan Preston.
This was granted by Mr Justice Peter Kelly in the High Court in September with Justice Kelly appointing Richard Fleck and Seán Gillane to investigate the claims.
An affidavit filed by ODCE director Ian Drennan claimed data involving 19 listed people was removed from the company’s premises in October 2014, taken out of the jurisdiction and “interrogated” by at least six companies external to INM.
IT expert and director of the information security and digital forensics firm DMZ IT Derek Mizak was allegedly involved in this interrogation, along with Trusted Data Solutions (TDS), an American company based in Wales.
The list included Jerry Healy SC and Jacqueline O’Brien SC (both of whom acted as counsel for the Moriarty Tribunal) as well as former INM board members and employees Karl Brophy, Mandy Scott, Vincent Crowley, Donal Buggy, Joe Webb and James Osborne; journalists Sam Smyth, Maeve Sheehan, Brendan O’Connor; and public relations executive Rory Godson.
Approximately €60,000 was paid by Blaydon Limited, an Isle of Man company owned by Denis O’Brien, to Trusted Data Solutions, according to Ian Drennan, the Director of the Office of Corporate Enforcement, in relation to this alleged interrogation.
Separately, the Office of the Data Protection Commissioner (ODPC) also announced earlier this year that it would also investigate the alleged data breach at INM.
Yesterday, in the Sunday Business Post, Tom Lyons reported that the ODPC will now widen its investigation into INM to include matters beyond the timespan of the alleged breach.
Mr Lyons reported the ODPC will specifically look at why, in 2015, hard drives of up to six editors in INM were allegedly taken by INM in the middle of the night and copied before being returned to the journalists’ desks before they got into work – while using software to hide the fact data had been copied.
Mr Mizak was also involved in this alleged action.
Mr Lyons reported:
“The decision to search the six computers was requested by INM’s then chief executive Robert Pitt, who was trying to identify who had leaked a memo that his personal assistant had sent to editors. The memo ended up being reprinted verbatim in the Phoenix magazine.
“Pitt is understood to have asked that all data be kept on site in INM, and that only the memo be looked for. However, Derek Mizak, a computer expert who carried out the operation with the aid of INM’s own IT team, gives a different version of events. He describes various interactions with Pitt, which INM’s former chief executive is believed not to recall.
Mr Lyons added:
“Pitt is one of two whistleblowers relied on by the ODCE when it successfully argued that High Court inspectors should be appointed to INM. Why the 2015 incident has not emerged in any affidavit to date is unclear.”
In addition, back in 2013, (before Pitt was INM’s CEO) INM’s then chairman Leslie Buckley asked Mizak for a report on emails that were allegedly being sent by a number of INM members – including former head of corporate affairs at INM Karl Brophy and former CEO of INM Gavin O’Reilly – to their private email addresses.
Mr Lyons noted:
“There is no suggestion of wrongdoing in anyone forwarding INM emails to their private addresses, and the media group never took any action as a result.”
Of this work allegedly carried out by Mr Mizak, Mr Lyons reported:
“INM did not ask for an invoice from DMZ. Neither did DMZ bill the listed media company. No written instruction setting out what work DMZ was to do was ever produced. Notes were taken, but these were destroyed afterwards by DMZ as was its practice when jobs concluded.”
Mr Lyons reported that INM declined to respond to questions as to why “it had not told the High Court so far about all of its interactions with Mizak”.
He also reported:
“INM is on notice from a number of parties who wish to find out what happened to their data, including Brophy, [Joe] Webb, Gavin O’Reilly and the journalist Sam Smyth.
“A number of former staff, including various journalists, have also written to the company to try and find out if their data was looked at. Much remains to unravel as the ever more disturbing investigation rumbles on.”
Previously: Look Hack In Anger
From top: Former Anglo Irish Bank boss Seán FitzPatrick and Minister for Business, Enterprise and Innovation Heather Humphries
And don’t call her Shirley.
In May of last year, the then Taoiseach Enda Kenny told the Dáil that the Office of the Director of Corporate Enforcement (ODCE) would provide a full report into the collapse of the trial of former Anglo Irish Bank chief Seán FitzPatrick.
Mr FitzPatrick was acquitted of furnishing false information to Anglo’s auditors last year.
It followed solicitor with the Office of the Director of Corporate Enforcement (ODCE) Kevin O’Connell admitting that he had destroyed documents relevant to the criminal proceedings against Mr FitzPatrick, among other matters.
On Sunday, Stephen O’Brien, in The Sunday Times, reported that the ODCE’s 235-page report on the failed trial, replete with 3,000 pages of appendices, will not be published.
[It was delivered to the then Minister for Enterprise Frances Fitzgerald in June 2017]
Mr O’Brien reported:
“The ODCE report includes correspondence with third parties, internal emails, and draft witness statements.
A source familiar with the document said: “It provides a detailed and fact-based narrative of the various factors that contributed to the trial judge directing the jury to acquit the accused. Under no circumstances could it be considered a whitewash.”
Further to this…
The Business and Enterprise Minister Heather Humphreys was interviewed by Áine Lawlor on RTÉ’s News at One this afternoon about the refusal to publish the full report and the decision to, instead, publish a 30-page summary-like document about the shortcomings.
The following exchange came after Ms Humphreys – who said she intends to turn the ODCE into an independent statutory agency and said the ODCE has since received more money and staff – insisted the ODCE is doing a “lot of good work”.
Áine Lawlor: “We have heard all these promises about transparency and accountability and resources and all the rest before. The track record, as you’ve referred to yourself, is patchy to say the least.
“Now, the Cabinet, the Government has, according to media reports, a 235-page report from the ODCE, with 3,000 pages of appendices, going through all the previous failings. Now given that Anglo Irish and IBRC, between them cost the Irish State and taxpayer nearly €35billion and that debt is still there in the national debt – why should the public not have the fullest account?
“Why are we only getting this 30 pages that you’ve published today?”
“Surely we deserve full transparency here?”
Heather Humphreys: “Yeah, well I just want to say that I’d like to be able to publish this report but I can’t. Because of legal advice, I would be contravening the Companies Act, if I did so – that’s why I have, today, published an account of the shortcomings identified by Judge Aylmer…I just want to make sure that what happened in the past, and it is historic now, will not happen again.”
Lawlor: “Well, saying it’s historic is all, the point about all of these things is whether we’re learning from the historic mistakes or whether we’re doomed to repeat them. How do we know that you are actually, minister, in the measures you’re taking, doing what’s needed – when we don’t have the fullest view of what went wrong in the past?”
Humphreys: “Well, what I’m saying is, is that, you know, it’s not legally possible for the minister to publish the report under Section 955 of the Companies Act and that’s why I’m publishing an account of the shortcomings…”
Listen back in full here
Independent House on Talbot Street, Dublin 1
The Irish Examiner reports:
The media group Independent News and News (INM) says it will not appeal a ruling to appoint inspectors by the corporate watchdog.
It means inspectors from the Office of the Director of Corporate Enforcement (ODCE) can take up their duties from today.
Costs were also awarded in favour of the ODCE.
From top: Conor O Mahony of the Office of the Director of Corporate Enforcement (ODCE): INM CEO Michael Doorly (left) leaving the High Court this afternoon
Kelly rules that ODCE’s application to have court inspectors appointed to #INM should be allowed. ODCE has produced necessary evidence that INM’s affairs may have been conducted unlawfully, in large part due to Leslie Buckley’s dealings with Denis O’Brien while he was INM chair.
— Mark Tighe (@marktigheST) September 4, 2018
The High Court has granted the appointment of inspectors from The Office of the Director of Corporate Enforcement to Independent News and Media
They may be some time.
The High Court, Dublin
In a 76-page judgement, President of the High Court, Mr Justice Peter Kelly has approved the application by the Office of the Director of Corporate Enforcement [ODCE] to appoint inspectors to Independent News and Media [INM], publishers of the Irish Independent, Sunday Independent and Evening Herald.
In its application, the ODCE alleged there was a culture of deference towards INM’s major shareholder, Denis O’Brien, and it had a suspicion the affairs of the company were interfered with for his benefit.
More as they get it.
Judge Kelly agrees to delay appointments of inspectors until Thursday morning.
— Mark Tighe (@marktigheST) September 4, 2018
To the shredders!
Independent News and Media CEO Michael Doorly
President of the [High] Court Mr Justice Peter Kelly will give his decision [today] on the application by the Office of the Director of Corporate Enforcement [to appoint inspectors to the company] which was strongly opposed by INM.
The ODCE described its application to have inspectors appointed to INM as unusually strong.
It said it was concerned INM’s affairs had been conducted in an unlawful manner for an unlawful purpose.
It alleged there was a culture of deference towards INM’s major shareholder, Denis O’Brien, and it had a suspicion the affairs of the company were interfered with for his benefit….
More as we get it.
The reception of Independent News and Media offices on Talbot Street, Dublin 1
Mark Paul, in The Irish Times, reports:
“Independent News and Media (INM) has recruited Deloitte for yet another investigation into an alleged major data breach at the newspaper publisher.
“It has also threatened outside IT experts, recruited under the supervision of former chairman Leslie Buckley, that it will sue them unless they co-operate, according to court papers.
“…Mr Buckley is refusing to meet the Deloitte investigators. In letters to INM’s legal advisers McCann Fitzgerald, Mr Buckley’s lawyers cite his anger at a letter sent by INM to the so-called INM 19, who were among those whose data was searched.
“That letter, his lawyers say, appears to blame Mr Buckley for “unauthorised” access to INM’s data.”
Previously: Why Did You Pay To Have These People Hacked?
Denis O’Brien (right) with former INM chairman Leslie Buckley
The legal team for the Office of the Director of Corporate Enforcement began making it’s application to the High Court for inspectors to be appointed to Independent News and Media.
It’s understood Brian Murray SC, for the ODCE, will continue making his submission tomorrow morning.
It follows claims in April that computer specialists which monitored the networks of INM, without the knowledge of the company’s board, were paid by a Denis O’Brien-owned company, according to claims in an affidavit filed in the High Court by the ODCE.
The ODCE said it uncovered emails containing a list of names which were to be searched for in the ‘data interrogation’.
Approximately €60,000 was paid by Blaydon Limited, an Isle of Man company owned by Mr O’Brien, to Trusted Data Solutions (TDS), an American company based in Wales, according to Ian Drennan, of the ODCE.
Former INM chairman and O’Brien associate Leslie Buckley told the ODCE that he gave TDS access to the INM networks as part of a “cost-reduction exercise” so he could “find out more detail about the awarding by INM of a professional services contract”.
Further to this…
Orla O’Donnell, of RTE, reports:
“Mr Murray [Brian Murray SC, for the ODCE] told High Court President Mr Justice Peter Kelly that the board of INM had believed Mr Buckley’s explanation that the data interrogation related to a “cost reduction exercise” concerning a contract with INM’s then solicitors.
“But he said the board was now saying that if what the Director of Corporate Enforcement is alleging is true, then the board was misled by Mr Buckley about the circumstances and purpose of the interrogation.
“Mr Murray said the board of a public company was now declaring that it was “hoodwinked” or lied to by its chairman in relation to matters of critical importance to its business.
“He asked how that could stand without some form of investigation. And if the board had been hoodwinked about this issue, the question of what else it had been hoodwinked about, became critical.
“Mr Murray said it was concerning that INM was claiming the issues were a small number of historic events which were individual and isolated.
“He said they were bound together by common features – Mr Buckley, Mr O’Brien and an actual or proposed act intended to confer an advantage on Mr O’Brien at the expense of the company as a whole.”
Previously: Life’s A Breach
From top: Ian Drennan, Director of the Office of the Director of Corporate Enforcement (ODCE); Chief Executive Michael Doorly and Chairman Murdoch Mac Lennan at the Annual General Meeting of Independent News and Media (INM) last month
Independent News and Media has lost its challenge to a decision by the State’s corporate watchdog to apply to have inspectors appointed to the company.
INM had argued that it should have been given an opportunity to respond to the Director of Corporate Enforcement’s concerns before he made the decision.
This morning Mr Justice Seamus Noonan dismissed the judicial review.
He said the argument that INM should have to be consulted first is “novel and without precedent“.
From top: Former Sunday Independent journalist Sam Smyth (right), one of those mentioned as having his data breached while working for the INM Group; Head of News INM, Jane Last outside the High Court this afternoon
The High Court.
Further to an adjournment, the copurt will hear INM’s challenge to the decision of the ODCE to apply to have inspectors appointed to the company on May 9.
The court heard Mr O’Brien has written to the Director of Corporate Enforcement, Ian Drennan, telling him he intended to hold him “fully and personally responsible” for what he alleged were “breaches of duty”.
In the letter sent on 6 April, Mr O’Brien said he had been subjected to extraordinary and intensifying media coverage suggesting he had been involved in wrongdoing.
He suggested that the Director had facilitated media access to the extensive document prepared by the ODCE in support of its application or had failed to take steps to restrict access to it.
Mr O’Brien said this was causing damage to him and to his reputation.
Yesterday’s Irish Independent; Social Democrat TD Catherine Murphy and Taoiseach Leo Varadkar
The Irish Independent reported that Kevin O’Connell, the legal adviser to the Office of the Director of Corporate Enforcement who shredded documents pertaining to trial of the former chairman of Anglo Irish Bank Sean Fitzpatrick – an action that contributed to its collapse – had sent emails to the Department of Jobs in 2011 complaining of a lack of resources and experience.
Journalist Niall O’Connor reported that these emails were only forwarded to the Government last month.
MrO’Connor also reported that “a report into the shortcomings of the case will confirm that Mr O’Connell has been moved out of the now under-fire corporate watchdog”.
Former Minister for Jobs Mary Mitchell O’Connor ordered this report shortly after the former chairman of Anglo Irish Bank Sean Fitzpatrick was acquitted.
Further to this…
During Leaders’ Questions.
Social Democrat TD Catherine Murphy raised the Irish Independent story and responses that she and fellow Social Democrat TD Roisin Shortall received from the Department of Jobs.
Catherine Murphy: “Taoiseach, yesterday’s Irish Independent raised significant questions regarding the ODCE [Office of the Director of Corporate Enforcement] and their handling of the Sean Fitzpatrick trial which was the longest running criminal trial in the history of the State. The public reaction to the case was a feeling of being utterly left down. People read what happened in the courts, rightly or wrongly, and as another case of people with friends in high places and the sense of punishment only being for the little people.”
“In a week where the public debate rages regarding the operation of the courts and the judiciary, it must be said that cases such as the Fitzpatrick case have a significant impact on public confidence in a system as a whole.
“I want to raise with you what appears to be significant conflict in the information provided to both myself and the Irish Independent by the Department recently, when compared to information provided to my colleague Deputy Roisin Shortall in November 2015.
“Yesterday the revelations in the Irish Independent seemed to suggest that the ODCE effectively misled the Department of Enterprise and therefore, Government too, regarding their ability, or lack of ability to effectively investigate the Fitzpatrick case and provide the DPP with the evidence required to prosecute.
“On the 31st of May this year, I received a reply from the then Minister for Jobs [Richard Bruton]. That reply assured me that, in 2011, the Secretary General of two departments, in Justice and Enterprise, had met the ODCE officials and offered extra resources if needed for investigation.
“The reply went on to say that the ODCE had claimed that they had no need for any extra resources. The reply clearly says that it was emphasised at the meeting that any requests for resources would be responded to positively. The reply confirms that the ODCE stressed they were satisfied with the resources that were available to them.
“Yet, in the reply to my colleague Deputy Shortall, in November 2015, it was claimed that the ODCE had flagged the need for further resources within their office, subsequent replies relating to that question indicate that there was a significant delay in meeting those resource requests – that’s obviously a significant issue in its own right.
“The Irish Independent claims that the email sent internally from Mr O’Connell, in 2011, about concerns regarding the lack of resources within the ODCE to pursue the Fitzpatrick investigation were only forwarded to the Department of Jobs within the last few weeks and we need to know if that’s true. We know that Mr O’Connell had, during the course of the investigation, shredded key documents and had also engaged in coaching witnesses and that ultimately, and that and other issues, ultimately led to the controversial collapse of the case.
“The questions I want to ask are: Can you explain the conflict between the Department of Jobs’ reply in May of this year to me and the same Department’s reply to my colleague Deputy Shortall in November of 2015.
“Does the Taoiseach worry that the ODCE may have concealed vital information from the outset, regarding their ability to pursue the Fitzpatrick investigation and does the Taoiseach believe the Government was misled by the Office of the Director of Corporate Enforcement?”
Leo Varadkar: “Thank you, deputy, I haven’t seen the report, it hasn’t gone to Cabinet. It hasn’t been published yet. I understand that parts of it may have appeared in a newspaper but I don’t know to what extent they are in truth or they are the full truth. And the report now has gone to the Attorney General and the Attorney General has to consider whether it needs to be redacted because, of course, individuals appear in the report and then may need to have their good name protected.”
“But once the Attorney General has dealt with the report, we will then publish an [inaudible] permission to do so and we’ll publish it with the response. At that point, I think it will be possible for the Tanaiste to answer your questions in more detail.
“What I can say is that the Office of Director of Corporate Enforcement, the ODCE, has got additional resources the last year and, indeed, the office has got several additional staff and I think too often in this country, a lack of resources is used as an excuse for poor performance which is why so often additional resources don’t make any difference in terms of outcomes and performance.
“And what I’ve read in the papers is that, you know, documents were shredded that shouldn’t have been shredded and witnesses were coached that shouldn’t have been coached. I don’t know how a lack of resources causes someone to shred a document they shouldn’t have or to find the time to coach a witness they shouldn’t have coached so I think we need more and more as Government opposition not to allow people to hide behind the excuse of resources, it isn’t always the reason as to why everything goes wrong. Often, it’s not the reason at all.
“As a Government and as a Taoiseach, I’ve expressed my view very clearly that I don’t think that our capacity to respond white collar crime and corporate fraud is adequate and for that reason I’ve asked Minister Fitzgerald and Minister Flanagan to work together with their departments to develop a package of measures to go to Cabinet by the end of September which will enable us to strengthen and deepen our response to white collar crime, to corporate fraud and I think that’s necessary, I think people demand it and I think if we’ve any chance in restoring confidence in the State’s ability to deal with such issues, we need to do exactly that.”
Murphy: “Taoiseach, I know the report is gone to, I mean, is gone to the AG. It wasn’t the question I asked. I asked the question in relation to a conflict between two questions, the same, broad question that was proposed to the same department where we got two different replies, two different responses.
“In 2013, the department were made aware that the documents were shredded, 2013. And that was just before the trial commenced. And I’m sure that same information would have gone to the DPP and would we have had the longest running criminal trial in the history of the State if they had that information?
“I asked you very specific information. The question, when it was posed in 2013, we were told that, the reply that I got was, if resources were requested they would be provided. Well now compare that to the reply that Deputy Shortall got, when she posed the question in 2013, and had to follow it up with other questions in relation to how many staff were there, when it was going to be augmented? It took a very long time, in fact I think it took before last year before they had their whole complement of staff, so that’s two years. Now, I asked you very specific questions in relation to how you can resolve that conflict. That’s an issue in its own right irrespective of a report going to the AG where you have a department that tells you two different things, both of them can’t be right because they’re the opposite end of the spectrum. Could you please address that issue and do you have confidence or do you believe that you were misled by the Office of Director of Corporate Enforcement?”
Varadkar: “I don’t have an answer to that question. I haven’t any dealings yet with the Officer of Director of Corporate Enforcement. So, I can’t say they misled me because certainly I’ve had no dealings with them as Taoiseach, over the past [inaudible] days and I didn’t have in my previous weeks either so I don’t believe they misled me but if you’ve a question, ask them to the line minister, I imagine he’ll do that in the normal way…”