Analysis: Challenging the word of the law - Cowen affair likely to have wider consequences

Barry Cowen’s bid to ‘set the record straight’ has ramifications for others who may wish to rectify what they see as inaccurate information about them on the Pulse system, writes Security Correspondent Cormac O’Keeffe
Analysis: Challenging the word of the law - Cowen affair likely to have wider consequences

Barry Cowen arrives for a Cabinet meeting at Dublin Castle as agriculture minister prior to his sacking by Micheál Martin this week, the Taoiseach having initially seemed to offer support to his minister.  Picture: Niall Carson/PA Wire

There have been plenty of twists and turns in the Cowen Pulse affair - but the ride is not over yet.

We’ve had a minister openly disputing an official Garda record about him, apparent details of which were published on the front page of the Sunday Times last week.

The story alleged he had turned away as he approached a garda checkpoint on the night he was found to be drink driving in September 2016.

He was fined for drink driving and given a three-month driving ban as he was on a provisional licence at the time.

Mr Cowen has been adamant that he did not evade, or attempt to evade, the checkpoint.

He is now seeking to, as he sees it, “correct the record” - setting him on a possible collision course with An Garda Síochána.

If the Gardaí believe the Pulse report is accurate and refuse to change the record, Mr Cowen may well take his case to the Data Protection Commission.

While appearing to get some support from his Taoiseach on Tuesday, who told the Dáil that the Pulse record was “not quite as portrayed” in media reports, he ended up being sacked as minister for agriculture.

Parallel to this is an expected criminal investigation by GSOC into how the Sunday Times got information from his Pulse record.

SETTING THE RECORD STRAIGHT 

Mr Cowen’s effort to "set the record straight” has wider ramifications for other citizens who might want to rectify what they believed is inaccurate information about them on the Garda computer system.

That, of course, is if they even know about it.

The contested part in Mr Cowen’s Pulse record is contained in what’s called the “narrative” section – essentially the part where the garda describes his or her account of the incident.

In the TD’s case, he was tested at the spot and again back at the station, showing he was just above the drink driving limit.

It is standard that a garda would ring the Garda Information Services Centre – the central inputting section – to create a Pulse record and tell GISC what to put in.

In some cases, the garda can create the record in the station and input the data.

Garda sources have said that in cases like drink driving gardaí would take detailed notes, in case the penalty is challenged and it ends up going to court.

The notes of the incident, in the garda’s notebook – together with the garda’s recollection of the event – will be key in whether or not Mr Cowen’s entry is changed.

Taoiseach Micheál Martin told the Dáil on Tuesday that Mr Cowen had said he had never seen the record containing the details regarding evading a checkpoint before – until he had been informed of such by the Sunday Times.

And Mr Martin initially gave some support to Mr Cowen’s case, saying: “Having seen the document, it is not quite as portrayed”.

Mr Martin said the Minister was “very adamant” that he did not turn away from a checkpoint and “there was no issue made of it at the time and no reference to it at the time”.

The Taoiseach added that Mr Cowen is “entitled to seek a correction of the record in so far as he believes it does not accurately convey what transpired, or implications can be taken from it that may not necessarily be the case”.

Micheál Martin: ‘Additional issues requiring further explanation and clarification’.  Picture: John Thys, Pool Photo/AP
Micheál Martin: ‘Additional issues requiring further explanation and clarification’.  Picture: John Thys, Pool Photo/AP

But, later, the Taoiseach told the Dáil that following discussions with Mr Cowen, on top of seeing the Pulse report, he felt there were “additional issues requiring further explanation and clarification”, but that Mr Cowen was unwilling to address these issues publicly.

In a tweet after he was dramatically sacked, Mr Cowen said he had shown the Taoiseach the Pulse report on Tuesday morning – suggesting he had obtained a copy of it successfully from the Gardaí.

So, this highlights a couple of issues. First, did the Sunday Times article accurately portray the contents of the record? If it didn’t, then the issue could be with the newspaper, not the record. If the article did reflect the Pulse record accurately, then the issue is the accuracy of the record itself.

RIGHTS OF CITIZENS 

In relation to people’s rights generally to access personal data held on them by the Gardai, the Citizens’ Information service said people can:

  • Get a copy of the personal data being kept;
  • Know why the data is being kept;
  • Know the identity of anyone that the Gardaí share the data with;
  • Know how the Gardaí obtained the data (unless it would be against public interest) 

In certain circumstances, it said gardaí can refuse a request for personal data and withhold that information.

These include where:

  • The request for data would identify someone else. This also applies to the Gardaí's obligation to provide details of the source of the information. If the source or origin of the information identifies a third party, then it can be withheld;
  • It is necessary to prevent, detect or investigate crime, or for arresting or prosecuting offenders;
  • Due to existing or expected legal proceedings or claims

Solicitor Rossa McMahon said records held by law enforcement agencies are not subject to GDPR (General Data Protection Regulation) but the EU Law Enforcement Directive that has been implemented in Part 5 of the Data Protection Act.

He said while there are similarities in the two regimes there are differences – differences that are very pertinent in Mr Cowen’s case.

“Gardaí must be free, obviously, to investigate crimes and investigations will sometimes involve the collection of information which turns out to be inaccurate (such as witness statements),” he said.

“Generally, under the GDPR there are rights of erasure and rectification, but for law enforcement the requirement is that the Gardaí take all reasonable steps to ensure that personal data that are inaccurate, incomplete or no longer up to date are not transmitted or otherwise made available.” 

He added: “A data subject [the person complaining] can request the Gardaí to rectify inaccurate personal data but the law states that if it is not possible to ascertain whether the data is inaccurate, or the personal data is required for the purposes of evidence in proceedings before a court or tribunal or in another form of official inquiry, the Gardaí are required to restrict the processing of the data and cannot rectify or erase the data.” 

GARDA HQ LINE

 In a detailed statement to the Irish Examiner, Garda HQ said that it had 8,180 subject access requests (personal data about them held by the Gardaí) in 2018 and 7,318 in 2019, with 2,700 requests for the year to date.

It said the organisation does not have a breakdown as to how many complaints lead to records being corrected or erased.

It said the “vast majority” are general requests for a copy of incidents, convictions or other court outcomes, and that any requests for rectification follow once the person has examined the data.

The statement said that under Section 71 (1) of the Data Protection Act 2018, Gardaí “must ensure that data processed by the organisation is kept accurate, and, where necessary, up to date, and that every reasonable step is taken to ensure that inaccurate data, having regard to the purpose for which it is processed, is erased or rectified without delay”.

It said that Section 92 (17) of the act defined personal data as inaccurate if it is “incorrect or misleading as to any matter of fact, or if it is incomplete in a material manner”.

Garda HQ said that Article 16 and 17 of GDPR also provide the right of data subjects to have inaccurate personal data rectified or erased.

The statement said that individual requests can vary greatly, from alleged factual errors to differences in subjective opinion.

It said that following enquiries with relevant garda sections “any inaccurate records found are rectified” and the data subject is notified.

However: “If following a review of the data An Garda Síochána as the data controller is satisfied that the data held is accurate, the data held will not be erased or rectified, and An Garda Síochána will notify the data subject of the reasons for this decision in writing as soon as practicable.” 

It said the person is informed of the outcome of the inquiry and told of their right to lodge a complaint with the Data Protection Commission (DPC).

The statement said that as per the 2018 act the decision on whether or not to rectify a record would be made without undue delay, but in any event within one month of the request.

It said this can be extended by a further two months if the request is complex, the data subject being kept informed of the matter.

GARDA INQUIRY 

Sources explained that the Garda Data Controller is likely to have already spoken to the garda involved in the Cowen incident, or is in the process of doing so.

The garda would be asked about the narrative entry, his recollection of the matter and to check what he or she had written in his or her garda notebook. These official notebooks are kept for a minimum of seven years.

“If that’s in the narrative the garda will have something in his notebook to that effect as well,” said one experienced garda source. “Otherwise the garda has to explain why he mentioned him turning away in the narrative. If it never happened, that’s a big issue for the garda.” 

The source said that in drink driving cases gardaí tend to “take a lot of notes” in case the person challenges the fine and goes to court.

The source added: “If the garda is standing over his account, and his notebook backs that up, it would be strange not to accept that, because if you don’t you open up the entire record on Pulse.” 

Gardaí in the force’s communications centre in Harcourt St, Dublin. Picture: RollingNews.ie
Gardaí in the force’s communications centre in Harcourt St, Dublin. Picture: RollingNews.ie

The source said it will be up to the data controller to make the final judgment on the matter.

Given garda checkpoints are rarely staffed by just one garda, the data controller may also talk to any other garda there at the time to see if they can recollect the incident.

Two experienced non-garda sources were not convinced An Garda Síochána would change the record.

One source said: “The garda would need to explain why they put that in and how did they come to form that view, but if it was a legitimate belief or opinion of their's at the time that the car turned around or appeared to and they put that into the entry, it's hard to see why you would change that. It might depend on how the entry is worded.”

The second source said: “If the record that one complains of is a statement of evidence by a Guard of what he or she witnessed on a particular occasion, it seems to me to be unlikely that one could use the DPA [Data Protection Act] to rectify/erase that unless the Gardaí accept that the statement was inaccurate, which would appear extraordinary. 

"It seems to me a dangerous road to take.” 

 

If Mr Cowen is not successful with An Garda Síochána, he can go to the next level.

In a statement, DPC said that if someone is dissatisfied with a response they receive from the Gardaí they can lodge a complaint with the commission.

The statement said that, last year, the DPC received 37 complaints in total under the Law Enforcement Directive, the majority relating to An Garda Síochána as the data controller, as well as the Irish Prison Service, the Revenue Commissioners, Veolia [Luas], Irish Rail and several local authorities.

Currently, of the 76 statutory inquiries the DPC has underway, none are in relation to Gardaí and the Pulse system.

It is thought the commission has never dealt with any cases requesting rectification of Garda Pulse records.

If the case does end up with the DPC it could be a tricky one for the authority.

Generally, it would seek to resolve the dispute between the complainant and the body concerned.

If, in this case, the Gardaí still maintain the information is accurate, the DPC will have to decide whether or not to set up a statutory inquiry.

It is thought that given the “public interest” aspect to the issue, it may feel inclined to set up an inquiry.

It could also be possible that during the resolution phase DPC officers see information from the internal garda enquiry and decide not to proceed with an inquiry.

If the garda who made the entry does not change his or her account and, consequently the Garda Data Controller decides not to change the record, it will be very difficult for the DPC to come to a conclusion that the garda was mistaken and that the official Pulse record needs to be changed.

It would involve the DPC proving that the garda in question was wrong to form the opinion that the deputy had turned away from the checkpoint and come to a conclusion that the record is inaccurate.

Short of the garda changing his story, it would appear Mr Cowen faces a difficult battle. Unless there are more twists in this ride yet.

*Garda Data Protection Officer: Email: DataProtection@garda.ie; phone: +353 (01) 666 9521 Office Hours (Mon – Thurs: 10.00 – 13.00 & 14.00 – 16.30, Friday: 10.00 – 13.00 & 14.00 – 16.00)

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