Michael Clifford recommends a data access system similar to the UK, with notice to affected parties
ARE you related by marriage or otherwise to a reporter? Do one of your friends work for the fourth estate? Are you related to a member of An Garda Siochána? If you fall into any of the above categories, you may be in danger of having your phone records accessed, the details of your private contacts parsed over and analysed quite possibly on the flimsiest of bases.
The blowing storm over the Garda Siochána Ombudsman Commission (GSOC) accessing the phone records of journalists without their knowledge raises fundamental questions. It has been revealed that GSOC has accessed the records of at least two reporters. That case relates to a complaint from an associate of the late model, Katy French, who died in 2007. At least eight inquiries are being conducted by GSOC into alleged leaks from the force.
It should be pointed out that many leaks from An Garda Siochána concern tittle tattle at best, and unwarranted intrusion at worst. The law deeming it an offence for members to release any unauthorised data was brought in by then justice minister Michael McDowell in 2005. He had been outraged at a leak about a casual assault on his son, a minor at the time, in Dublin. Many would have sympathy with McDowell on that score.
However, there is also much information passed on from members which is in the public interest. In a force that is culturally closed in terms of information — in total contrast to police forces in the neighbouring jurisdiction for instance — leaks are going to take on a greater significance.
In terms of complaints about garda leaks, there is no benchmark to determine whether or not the information passed is in the public interest, particularly if it’s not in the interests of garda management. This would be the case with any garda whistleblower releasing unauthorised information.
(It is unclear whether the Protected Disclosures Act 2014 would cover whistleblowers in all instances.)
Now we are encountering a scenario whereby GSOC is accessing the phone records of reporters as part of an investigation into leaks. The reporters in question were not informed that their data was being examined, which is perfectly legal.
GSOC acquired the powers to act in this manner following an amendment last year to the Communications (Retention of Data) Act 2011, granting new powers to the investigative body.
The commission acquired a range of extra powers on foot of concerns of maladministration and worse in the force.
But what safeguards are there? For instance, on the face of it, the powers would allow GSOC access the server of large media organisations like RTÉ in order to locate historic emails. This could involve GSOC parsing emails that have nothing to do with its specific investigation.
Other civilians who are not engaged in the media may also be subjected to this intrusion. If a garda’s records show the number of, for instance, a relative of a reporter, GSOC can access that person’s records on the basis they could be relevant to the inquiry.
Then there is the politics at the interface of police and media. When, in recent years, GSOC found itself at loggerheads with An Garda Síochána, a number of reporters appeared to be only too eager to take sides, lining up with the force, skewing coverage to the detriment of GSOC’s profile. There is no defence for such activity, but it is obvious that some reporters felt compelled to go down that route.
Now, GSOC, if it was so minded, can wreak revenge, obtaining records of “hostile” reporters and parsing them for all they are worth. This could in turn open up new avenues of curiosity, from which could be garnered a whole gamut of information that may be of use, or may just be handy to store away for future reference. All, of course, in the name of legitimate investigation.
What of a complainant to GSOC who is unhappy with how a complaint is being dealt with? If he or she wishes to highlight shortcomings, the obvious avenue to explore is contact with a reporter. This is arguably in the public interest, but now GSOC has the power to access emails that might contain a complainant’s file being sent to a reporter. Is that right and proper?
This is not to assume or suggest that GSOC personnel would operate outside either the letter or the spirit of the law. But long and painful experience has shown us that when there are no constraints on power it will inevitably be abused. The control on this power is very loose at best. The civilian is not informed that his or her records are being accessed. There is no forum to facilitate an appeal of the intrusion. The only provision for oversight is an annual review by a High Court judge, which really is precious little oversight at all.
Accessing records in a barely controlled manner is not new. A chief superintendent can authorise the access of personal communications in pursuit of a criminal investigation. But here also, oversight is skimpy. An audit by the Data Protection Commissioner in 2014 showed the force had requested up to 60 private phone records a day over the course of 2012. The audit also found that in some instances the authorisation did not come from a chief superintendent, and that a few high-profile celebrities had had their records accessed for no obvious reason.
In the current case involving GSOC, Minister for Justice Frances Fitzgerald ordered a review of the powers last weekend. This represented a volte-face on her position 24 hours earlier when she had no problem with the situation. In the meantime her colleague Leo Varadkar had admitted he found the whole thing “a little bit odd and sinister”. The last time Mr Varadkar stated the obvious about goings on in the area of criminal justice it ultimately led to the resignation of a commissioner. So now Ms Fitzgerald wants a review.
A lot more than a face saving review is required if this power is to be properly contained. In the UK, a judge must sign off on any request to access records in this manner. This at the very least is required. But it should also be the case that anybody whose records are to be accessed must be informed that they are being subjected to this scrutiny.
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