Balancing privacy and public interest

The dramatic arrest of a garda this week on suspicion of leaking sensitive information to the media has left both gardaí and journalists reeling.

Its implications may well go far beyond them, affecting the “public interest” both the police and the media are expected to serve.

And it raises a question mark over the much- heralded new era of openness and transparency in the Garda Síochána.

The Roma report, published last July, was particularly critical of the garda-media relationship in the case of Child T, the Roma girl removed by gardaí on October 21, 2013, on suspicion of being abducted.

Children’s Ombudsman Emily Logan said “sensitive” information was published which was a “very serious infringement of Child T’s privacy and also that of her family”.

Her report said there were “striking similarities between the text, form and content of the information found in the article published on the morning of October 22 and the only written report prepared within An Garda Síochána on October 21”.

She said that “on the balance of probabilities” the information came from within the force and concluded that the action “may have been the result of a breach of discipline and/or an offence”.

Then interim commissioner Nóirín O’Sullivan immediately set up an investigation, which led to Thursday’s arrest under the Garda Síochána Act 2005.

When news of the arrest broke it was greeted with shock, as the reality of it sunk in.

“I was just shocked by it and saddened for him, although I don’t know what evidence the investigation has,” said one senior garda.

A second officer said: “He could say he honestly believed he was doing his job, that he was protecting the good name of the force. Maybe he exercised bad judgement, but that’s not a criminal offence. And if he can argue he had permission that could open up a whole can of worms.”

A third security source said: “Arrest is usually the ultimate step and, then, to have his detention extended overnight, thrown into a cell and treated like a common criminal that just adds pressure on him and his family.”

Former Irish Independent security editor Tom Brady said it was difficult to comment directly on the arrest as he was not aware of all the details surrounding it.

But he added: “In all my dealings with him he was highly regarded and well respected, by both crime reporters and gardaí and in his dealings with me he did not, to my knowledge, breach any garda regulations.”

Mick O’Toole, crime correspondent of the Irish Daily Star said: “Emily Logan gave garda management two options – the disciplinary route or a criminal one and for whatever reason they chose a criminal investigation.”

Section 62 of the Garda Síochána Act 2005 is very broad and makes it a criminal offence - punishable by up to five years imprisonment - for a garda to disclose information that is “likely to have a harmful effect”. It lists 10 areas: from disclosure that impedes the prevention or investigation of an offence to disclosure that constitutes an unwarranted and serious infringement on a person’s right to privacy.

The legislation does not say the garda needs to have intended a “harmful effect”. Instead the garda is “presumed, unless the contrary is proved” to know that his or her actions would have such an effect.

There are defences to disclosure – and these may have a significant bearing on the current case. These include disclosure which “is made in the course of, and in accordance with, the duties of that person’s office or employment” or where it is “authorised by the Garda Commissioner”.

It remains to be seen how the Director of Public Prosecutions weighs up the evidence and the legislation when she receives the garda file. And there are wider implications for journalists, particularly crime reporters, and society at large.

“This will increase levels of paranoia and secrecy in members,” Mr O’Toole said. “It will frighten every garda in the country from talking. Members of the force will be instructed to say nothing.”

Mr Brady said: “My fear is that gardaí are going to be looking over their shoulders all the time now. It’s bound to have an impact on what they tell journalists. They’ll second guess everything.”

Mr O’Toole said the main strength of the Garda is that it is “a police force of the people” and serves the community: “A key element of that is that they can talk to us and we tell the people.”

He describes as “complete rubbish” the opinion peddled by some commentators that crime reporters are too cosy with gardaí: “I have lost loads of garda sources because of stories I have written. Crime reporters do stories every week that drive garda management mad.”

He fears the arrest will cement the existing corporate philosophy of “secrecy, paranoia and fear” in the Garda Síochána.

“At the moment we have nothing on the record and nothing off the record,” he said. He said this was not to criticise the staff in the press office, but the culture in the force, and compares that with the authority of press offices in the PSNI and Britain.

Solicitor Gareth Noble said there is a need for the laws on disclosure: “There are examples of unacceptable leaks regarding ongoing investigations and it’s not done out of some laudable objectives of the public interest, but to damage the individuals against whom the information is about. So you need proper boundaries.”

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