The planning tribunal is to apply to the High Court to compel The Irish Timesto comply with an order divulge the source of the leak of confidential papers detailing payments to Taoiseach Bertie Ahern.
Editor Geraldine Kennedy and public affairs correspondent Colm Keena last week declined to provide the tribunal with any information about the source of a letter from the tribunal to businessman David McKenna. Mr McKenna was one of 12 businessmen found to have made payments totalling £38,500 to Mr Ahern in the early 1990s.
Both cited the need to protect journalistic sources.
The tribunal was told the documents on which the article by Mr Keena that was published on September 21 stwas based had been destroyed.
In an eight-page statement this afternoon, tribunal chairman Judge Alan Mahon said the confidentiality of the inquiry's correspondence must be protected.
He said the tribunal wrote to The Irish Timesthe day after the article was published, seeking an explanation of how confidential documents were published in the newspaper.
Ms Kennedy wrote to the tribunal explaining the letter had arrived at her office "unsolicited" and "anonymously". She said she had "a duty to publish in the public interest", adding that she was unaware of the existence of a Supreme Court order restraining the publication of confidential tribunal material.
"Notably, Ms Kennedy's letter did not deny that the letter quoted in the article was confidential to the tribunal and expressed to be so," Judge Mahon said.
"It is not in dispute that both Ms Kennedy and Mr Keena have refused to answer questions put to them by to the tribunal, and that they have failed to produce the documents they were ordered to produce. By their own admission, they have destroyed documents which were the subject of a tribunal order of which they were aware.
"The tribunal considers that such acts and omissions amount to breaches of the Tribunal orders and the Tribunals of Inquiry (Evidence) Acts 1921 to 2004."
Judge Mahon noted that the tribunal was not a court of law and had no power to rule on whether or not acts amounted to criminal wrongdoing. Nor, he said, has it the power to impose civil sanctions on persons who fail to comply with its orders.
However, he said it did have to power to apply to the High Court seeking help in ensuring compliance with tribunal orders or sanctions against any person who fails to do so.
"The tribunal has decided that it will exercise these powers ... to seek Orders from the High Court to compel Ms Kennedy and Mr Keena to comply with the tribunal's orders which they have breached to date."
If the High Court grants the order, Judge Mahon said the tribunal would summons Ms Kennedy and Ms Keena to reappear in Dublin Castle "to endeavour to elicit the information sought". He warned the two journalists that failure to comply with a High Court order could amount to contempt of court.
Both journalists could face a possible fine of up to €300,000 and/or up to two years in jail.
Speaking outside the tribunal this afternoon, Ms Kennedy said she stood by her decision to publish the article, saying she believed it was in the public interest to do so. "I don't want to say anything now that would jeopardise my position, but I made my position quite clear last week that we published the story in the public interest and we are obliged to protect our sources," she said.
