Tuesday, 10 September 2013

Garda Síochána Ombudsman Commission seeks unlimited access to criminal records

The Irish Times - 10th of April 2013 

The Garda Síochána Ombudsman Commission has urged Minister for Justice Alan Shatter to give it unfettered access to the Garda’s Pulse computer database, which includes intelligence on criminals.

The Data Protection Acts 1998 to 2003 confer rights on you to access certain information (on computer, in manual or paper files) about you which is held by the Gardaí. An example of this information would be any entry by the Gardaí on the Garda PULSE system (the Garda computer system), or in Garda investigation files.  

Can I access any data being held on me by the Gardaí? 

• A copy of the data being kept about you

• A copy of any data held about you which is an opinion (except where such opinions were given in confidence)

• Know the purpose for which the data is being kept

• Know the identity of anyone to whom the Gardaí disclose that data

• Know the source of the data (i.e. where the data came from) unless it is contrary to public interest.

• Supply the information to you within 40 days of receiving your request • Provide the information in a manner or form which will be clear to you.

• If the access application or request for data would identify someone else. This also applies in relation to the obligation on the Gardaí to provide details of the source of the information held. If the source or origin of the information identifies a third party, then it can be withheld.

• If the personal data being kept is for the purpose of preventing, detecting or investigating crime, or for arresting or prosecuting offenders.

• The child does not have the intellectual ability to understand the nature of the request • The parent or guardian is acting in the best interest of the child.

• If in the opinion of a member of the Gardaí (not below the rank of Chief Superintendent), the personal data is required for the purpose of safeguarding the security of the State

• If the personal data is required for the purpose of preventing, detecting or investigating crime or for arresting or prosecuting offenders

• Your full name

• Your correct date of birth

• Any other names used by you

• Your current address and previous addresses in Ireland

• A copy of your passport, driving licence or birth certificate

• A fee of €6.35.

You have a number of other rights under the Data Protection Acts, in addition to the right of access described above These additional rights include the right to have any inaccurate personal information about you corrected or erased and the right to complain to the Data Protection Commissioner. 

Why can the Gardaí refuse my request? 

Can somebody apply to the Gardaí for my personal data on my behalf? 

Can the Gardaí access personal data held on me by other people? 

How to apply.
What can I do if the Gardaí refuse my request?
The move is likely to be strongly resisted by Garda Headquarters as it would represent the first time in the history of the force that the Garda did not have full control, and the ability to disseminate as it sees fit, the intelligence at its disposal. The Commission has expressed concern that under current procedures it is reliant on assurances from the Garda that information passed to it represents the “totality of such information held” on whatever matter it may be investigating.

“The absence of any independent access to (the Pulse) systems raises issues around the effectiveness of the Ombudsman Commission’s oversight investigative function,” it said in a report to Mr Shatter.

The report contains a series of recommendations arising from the Commission’s  recently concluded major investigation into how gardaí handled drug dealer and informer Kieran Boylan. It had encountered “delays in access to documentation and intelligence” held by the Garda as a “constant feature” of the four-year investigation, citing those delays as the reason for the excessive time taken to complete the inquiry.

Aside from what it believes were serious delays in providing information to it, Gsoc has also expressed serious concern that measures around the registering of Garda informers and recording the extent and nature of contact with them are possibly not being followed. It outlined its concerns in a brief report published yesterday at the conclusion of its investigation into the Boylan affair. Mr Shatter later released a fuller version of that report sent to him by Gsoc last week in which it made a number of recommendations.Mr Shatter is reviewing the report and awaiting observation on it from Garda Commissioner Martin Callinan.

However, Mr Shatter last night released a two-page report from a retired High Court judge TC Smyth SC, who has examined the use of informers. In a report on it dated October 2012 the judge informed Mr Shatter there appeared to be “substantial compliance” with the rules set down for handling informants under it.

Section 4 of the Data Protection Act allows you to make a request to the Gardaí for a copy of any of your personal data being kept by them. On making an access request to the Gardaí, you are entitled to: Once the Gardaí receive a correct request from you, they must reply to you within 40 days. This is the case even if they do not hold any of your personal data or they are refusing the request.

If the Gardaí decide that the information is to be provided to you, they must: Under the Data Protection Acts, the Gardaí can refuse any request for personal data and can withhold that information on the following grounds: Yes. The Gardaí may receive an access request by a representative on your behalf. They will however will need to satisfy themselves as to the identity of that person and will have to be provided with enough information about you to assist in establishing identity and locating the data sought or requested.

The Gardaí will require written confirmation from you, authorising your representative to make the request. An example of this could be where your solicitor would be authorised by you to request the information. Where the request is in relation to a child, then a parent or guardian can exercise the right to apply for and receive the information on behalf of the child if:

Yes. In certain circumstances, the Gardaí are entitled to access your personal data. In such circumstances the person holding such personal data on you will not be in breach of the rules against disclosing personal data to third parties. The following are the occasions where the Gardaí are allowed to access such personal data:

How do I apply to the Gardaí for my personal data?

Requests for personal data must be made in writing to the Garda Criminal Records Office. While it is not a requirement to mention the Data Information Acts, it is recommended that you do. You can download the Gardaí's access request form (pdf).

You must provide enough information to establish your identity and to allow the Vetting Unit to locate the information you request. It is important (from the Gardaí’s point of view) that they establish your identity to ensure the information is given to the right person.

In order to obtain your own personal data, you are required to provide the following: 

If you are of the opinion that the Gardaí are in breach of the law by not giving you the personal data you requested, you can make a complaint to the Data Protection Commissioner. The Commissioner will investigate your complaint unless they are of the opinion that the complaint is frivolous or vexatious. (That is, your complaint is without any foundation). As soon as the Data Protection Commissioner has investigated your complaint, you will be notified in writing of the decision.

 If the Data Protection Commissioner is of the opinion that the Gardaí are in breach of the Act, the Commissioner may serve what is called an enforcement notice on the Garda Commissioner and make the Gardaí hand over to you the information you requested.