Going public with private investigations

The world of private investigators has been glamorised beyond all sense on-screen and in novels.

Therein, the PI is a hardened soul, weighed down with emotional baggage. From Sam Spade to Jim Rockford, and onto Lawrence Block’s creation, Matthew Scudder, the PI is portrayed as a man struggling with minor moral issues in a world full of bigger ones.

Ultimately, the PI is the good guy, exhibiting human flaws that heighten his triumph against superior forces.

The real world is a little more mundane. Most private investigation work consists of compiling information. Much of this information is boring, and usually it comes from official sources, through unofficial channels.

One area where the average PI makes his or her crust is insurance.

A claimant, for instance, is alleging grave injuries. He claims the injuries have severely curtailed his mobility. A PI follows him for three days and observes the claimant playing football and ballet dancing. The claimant is in trouble.

If a claimant has a history of claiming, that could be relevant, even in the early stages of an action. Equally relevant might be the social welfare record of a claimant, particularly if he or she had claimed welfare following a previous actual or alleged accident.

Access to social welfare records is vital in assembling a picture of somebody. The records contain bank accounts, previous employment, a wife’s maiden name, children’s names, RSI numbers. A complete picture of an individual can be compiled from social welfare records.

Obtaining such records legally is difficult.

Apart from specific instances, social welfare records are protected under the Data Protection Acts of 1988 and 2003. Last week, three insurance companies pleaded guilty at Dublin District Court to illegally using social welfare information on individuals. The information had been obtained through a private investigator.

FBD, Zurich and Travelers Insurance pleaded guilty to ten sample charges, each in a prosecution taken under the Data Protection Act. All three offered to make donations of €20,000 to charities, and the judge applied the Probation Act.

The case came to light in Dec 2010, when somebody in the Department of Social Protection noticed an unusual pattern of access to its database by one of the staff. The same employee had been making phone calls to two numbers. Two and two were added up. It didn’t take Sam Spade to realise that something fishy was going on.

The data commissioners and the gardaí were informed. The former body obtained details of the employee’s access to the department’s computer, and also rumbled that the phone calls were to a Kildare-based private investigator, Reliance Investigations Services.

On Dec 9, 2010, officials from the commissoners’ office paid a visit to the PI and obtained its client list. The court was told that VAT invoices, linking the PI with the insurance companies, were crucial evidence. The court heard that a garda investigation into the matter was ongoing.

After the case, the data commissioner’s office said in a statement that it was satisfied that the companies had substantially improved their systems and were seeking to be compliant with the law.

The case had, according to the commissioner, “sent the strongest possible message to other companies” in the insurance sector that there would be “severe consequences for breaches of the data protection acts.”

One wonders. Five years ago, when working for The Sunday Tribune, reporter Conor McMorrow and I broke a story about how insurance companies employ private investigators who obtain confidential information about citizens.

Documents came into our possession which showed the levels of detail that private investigators all around the country were supplying to one insurance firm.

The documents published at the time showed how routine was the practice of acquiring confidential information. Reports were also compiled for the Motor Insurers Bureau of Ireland, an umbrella company for the industry.

One typical example was as follows: “I carried out a criminal record check on X. Confirmed that he has six criminal convictions”. And further on: “He was on unemployment assistance from the 7/9/01 to the 27/2/02. He has had a number of unemployment and disability payments made to him. He has been in receipt of disability payments continuously since the accident, mostly paid by the health board.”

Another, from a PI based in the south of the country, reported on a woman who was the subject of an insurance claim from a traffic accident. “I have secured a copy of the garda file on the accident for your information,” the PI reported.

Another file, compiled for a solicitor’s firm, included the detail that “social welfare files record her as being employed with (named) firm. Mrs X has no previous convictions recorded against her.”

When contacted, the different PIs gave various, largely implausible, explanations as to how they came into possession of this information. Other investigators merely hung up when asked about the information.

The Department of Social, Community and Family Affairs, (as it then was) launched an investigation. So did the data commissioner and the gardaí. Among the files were constant references to the criminal records of various subjects, which ordinarily are only in possession of the gardaí.

What emerged was a picture in which the majority of PIs had easy access to the welfare and criminal records of any citizens who were the subject of attention from an insurance company. By using private investigators, the companies were distancing themselves one step from the acquisition of the data.

The information acquired could be used in any number of ways. It could present the company with a picture of a pattern of claims, and that might harden the resolve of a company in fighting a claim. Equally, it could be used as a weapon to push a claimant towards a settlement favourable to the company. The information could also be kept on file for future use.

Whatever use it was put to, the acquisition of this information was, and is, illegal when done without the express consent of the subject. It diminishes the rights of a citizen when they find themselves up against an arm of big business.

Notwithstanding the assurances given by the three companies at the centre of last week’s case, a question must be asked as to whether the industry no longer attempts to acquire this information.

Is it possible that a tactic which was central to insurance investigations has now been discarded?

As for the PI, novelist Raymond Chandler once wrote of his creation, Philip Marlowe, “down these mean streets a man must go”. Whatever the condition of the streets, the ends often don’t justify the means.

Sometimes, it’s just plain illegal to diminish the rights of a citizen simply because big business is footing the bill. Above all, citizens are entitled to believe that their confidential information remains confidential when it is held by an agency of state, whether that be a government department or the gardaí. Let’s be careful out there on those mean streets.