Prison Service whistleblower analysis: Is it ever legitimate to put an employee under surveillance?

A serving prison officer claims covert surveillance, including tracking devices on vehicles and listening tools in visiting areas, is being used in an effort to detect the smuggling of contraband into prisons, writes Michael Clifford.

Prison Service whistleblower analysis: Is it ever legitimate to put an employee under surveillance?

A serving prison officer claims covert surveillance,

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Michael Clifford

The gathering and retention of data in the workplace is an area dotted with landmines.

When is it legitimate to put an employee under surveillance? Can it be done in a covert manner? What if the motivation to do so is the possible commission of a crime?

All of these questions arise in relation to the allegations about activity in the Irish Prison Service reported on in this newspaper today.

As the allegations concern an environment inhabited by dangerous criminals, a major security concern also arises.

The allegations from a serving prison officer centre on the use of covert surveillance in an effort to detect the smuggling of contraband into prisons.

This included the placing of tracking devices on both private and Prison Service vehicles without the knowledge of the personnel involved.

He also claims listening devices in visiting areas sometimes picked up conversations between prisoners and their solicitors.

Much of this and other similar actively was allegedly carried out by an outside private detective agency.

One allegation concerns the placing of a covert camera in an area frequented by a large number of prison officers and the dispatch of that film to the detective agency located outside the prison.

This immediately gives rise to concerns that the footage could fall into the wrong hands. Personal security is a constant concern for prison officers due to the nature of their work.

The motivation for this covert surveillance, according to the prison officer, was to detect the smuggling of contraband into the prison.

Mountjoy Prison
Mountjoy Prison

Preventing this criminal activity is a routine duty for the prison service. The main items of contraband are drugs and phones.

The drug problem in prison has been well aired, but phones are also regarded as hugely valuable.

In 2007, convicted armed robber John Daly phoned RTÉ’s Liveline programme from his cell in the maximum security prison in Mountjoy. The call sparked political and public outrage.

The result was a sea change in implementing policy around the banning of phones in prison.

As might be expected, this hugely increased the value of the devices. For instance, according to sources in the Prison Service, a mobile phone can sell for anything between €500 and €1,000.

The going rate to rent a phone for a night within the prison system is around €80.

In the event of a phone being discovered and confiscated while out on rent, the renter, or his family on the outside, is expected to stump up for the cost of the device.

Preventing the proliferation of contraband within prisons can also have an impact on gang activity. Contraband is power in the closed environment of a detention facility.

Take away the contraband and you impact on the power that can be yielded.

That’s the background in which the prison service is constantly on the lookout for contraband.

The claims by the prison officer reported in today’s Irish Examiner concerns the methods used to disrupt that traffic.

The laws on the gathering and retention of data are covered under different acts. Of particular concern is the prison officer’s allegation about the use of tracking devices in vehicles.

Tracking devices can be permissible in an employment context in limited circumstances and with the knowledge of employees using the vehicles.

Retaining an outside agency to place tracking devices and gather the data is definitely not covered by data protection or employment laws.

If any such data were, for instance, handed over to An Garda Síochána, further questions would arise.

Would such information have been used by the police? Would any inquiry have been made as to how another State agency, the Irish Prison Service, came into possession of such data?

Installing hidden cameras is another issue. According to an advice sheet from the Data Protection Commissioner, certain precautions must be taken.

An organisation “must be able to demonstrate that the serious steps involved in installing a system that collects personal data on a continuous basis is justified.

“Before proceeding with such a system, it should also be certain that it can meet its obligations to provide data subjects, on request, with copies of images captured by the system.”

There is no provision for the removal of collected data from the place of work. The allegations at issue include one the data was removed to a centre controlled by the private detective agency.

The location of any hidden cameras is another issue, as per the allegations.

According to the DPC: “The location of cameras is a key consideration. Use of CCTV to monitor areas where individuals would have a reasonable expectation of privacy would be difficult to justify.

Toilets and rest rooms are an obvious example. To justify use in such an area, a data controller would have to demonstrate that a pattern of security breaches had occurred in the area prior to the installation of the system such as would warrant constant electronic surveillance.

Whether installing a listening device in a visitors’ area, as alleged, or an area through which a large group of prison officers pass, is legal remains to be seen.

A prison isn’t a conventional workplace, but both prisoners and those who staff the prisons have the same digital rights as everybody else.

There may be a case that some unconventional practice can be legitimately justified in attempting to detect the flow of contraband into a detention facility.

The allegations need to be tested. It may well be that they are without foundation.

Some elements of the allegations can be easily examined in a preliminary manner.

Has a detective agency been retained by the Prison Service? If so, why?

Is there any record of payment for the installation of tracking devices or other such activity?

Confidence in the system requires that the testing is undertaken with urgency.

The only remaining question is who does the testing. The Prison Service? The Department of Justice?

Neither has a record of demonstrating a capacity for rigorous self-examination. Let’s wait and see.

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