Sunday 23 October 2016

Investigation launched into GSOC access of journalists' phone records

Kevin Doyle, Shane Phelan and Sarah-Jane Murphy

Published 19/01/2016 | 11:54

Frances Fitzgerald. Photo: Steve Humphreys
Frances Fitzgerald. Photo: Steve Humphreys

The Cabinet has given approval for the appointment of a legal expert to review the legislation which allows GSOC to access the phone records of journalists.

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As revealed in the Irish Independent this morning, Justice Minister Frances Fitzgerald wants an independent person to study best international practice in the area and suggest any legislation changes that might be required.

It is expected that the review will look at the ease with which GSOC and An Garda Siochana can access phone records.

The watchdog has been embroiled in three scandals in the past two years, including one where it incorrectly claimed gardaí were bugging its offices.

And it emerged last week that GSOC accessed the phone records of two journalists following a complaint by a friend of the late model Katy French about alleged garda leaks.

Today, John Wilson, a former garda turned whistle-blower, has said that accessing the phone records of journalists is something which should only happen in extreme circumstances.

Mr Wilson said he believed warrants permitting such surveillance should be issued by a judge in every case.

"When I was a garda we were told not to have any contact with journalists.

"However we know that journalists need sources in order to survive -  if they don't have sources then important information won't come into the public domain.

"In the past some information was drip fed to the media to discredit Maurice McCabe and myself," he told The Pat Kenny Show on Newstalk.

Wilson referred to a recent Supreme Court decision that recognised the right of journalists to protect their sources.

"The greater good should prevail, and giving GSOC the power to trawl through journalists phone records is not the answer.

"We need more transparency between journalists and the gardai, some reporters are briefed regularly by members of the gardai and that's not good for anyone," Mr Wilson, who is standing as an Independent candidate in the Cavan/Monaghan constituency for the general election, said.

"All warrants should be issued by a judge and accessing the data of journalists is something that should only happen in extreme circumstances.

"There is no law that says you cannot speak to a journalist and there's a proud tradition of investigative journalism in this country - I don't want anything to damage that," he told host Pat Kenny.

Meanwhile, Fianna Fail Justice spokesperson Niall Collins has said that the government have not tackled the issue effectively.

"Nobody is above the law, and it's very important that the right balance is achieved here.

His party has created draft legislation which aims to prevent GSOC gaining access to confidential communications between journalists and sources in the absence of a court order.

Collins will introduce the Garda Síochána (Amendment) Bill 2016 in the Dáil today.

Under the proposed legislation, the High Court can only grant GSOC an order “in exceptional circumstances where the public interest so required”.

"Fianna Fail's bill will require GSOC to apply to to the High Court for an 'application to proceed' prior to accessing a journalist's phone records.

"The relevant journalist will be on notice and can make an ancillary application.

"Our aim is to protect the independence of GSOC and the freedom of the press," he told RTE News at One's programme.

Meanwhile former Press Ombudsman, Professor John Horgan, told RTE's Morning Ireland that the current process of monitoring the interception of electronic communications is "wildly insufficient".

"I'm not sure that what needs to be done is something that will take a commision of inquiry or any very lengthy course of activities. What seems to have happened is that this power was given to GSOC in a sort of catch-all way. Nobody stopped in time to think about what kind of modality should govern this power. As far as I know the only constraint on this is that the judge would look on the record of interceptions made under this power once a year and that's insanely, wildly insufficient."

Last night Taoiseach Enda Kenny slapped down the scandal-ridden garda watchdog for snooping on the phone records of journalists.

Responding for the first time to the revelations that communications by journalists were being monitored, Mr Kenny said: "Clearly the fundamental principle of journalistic sources being confidential is very important in a democracy."

Mr Kenny's stinging rebuke has placed intense pressure on the embattled Garda Síochána Ombudsman Commission (GSOC).

The Taoiseach said there was a difference between "this kind of incident and one where national security might arise".

He said: "The minister will respond appropriately and quickly in this regard".

The Irish Independent understands that Justice Minister Frances Fitzgerald will seek approval from Cabinet today to appoint an "eminent person" from the legal profession to review the laws that allows GSOC to access data on journalists' phone calls.

This person will be tasked with reviewing international best practice and looking at the Communications (Retention of Data) Act 2011 which GSOC has relied on when accessing phone records of journalists.

A source said: "The review will only look at the section as it relates to journalists so it will be completed as soon as possible. It will not be a drawn-out process."

However, any legislative changes that might be recommended by the review are highly unlikely to be drafted before the general election.

At the weekend, Ms Fitzgerald proposed a "scoping exercise" within her department - but the Taoiseach and Tánaiste injected a new urgency into the debate yesterday.

"Minister Fitzgerald is looking at this on the basis of the protection of the sources of information for journalists in a free world, in a free press," Mr Kenny said.

"Fundamentally, I think that where issues like this are concerned that it would be appropriate that the legislation be reformed to reflect that.

Because whatever else people might argue about, there has always been a consistency about the protection of sources for information for members of the press in a democracy like ours," he added.

Tánaiste Joan Burton said it "goes without saying that the protection of journalism sources is of critical and primary importance, and the Government will address that".

It is understood the Labour Party favours a system similar to the UK whereby each application for accessing data on a journalist's phone usage would be examined by an independent judge.

Last night a spokesperson for GSOC refused to comment on the Taoiseach's criticism.


The commission has declined to answer questions from the media on the furore to date.

Public Expenditure Minister Brendan Howlin has said it strikes him that the situation in Britain is one that should be looked at.

On his way  into today’s Cabinet meeting the Labour Party minister said he wanted to see what proposals Frances Fitzgerald brings forward.

But he added that if GSOC is of “a very strong view” that it needs to access information about journalists phone calls that should require the authorisation of an independent judge.

The complaints body was previously at the centre of major political upheaval two years ago when it claimed gardaí were bugging its offices.

And last summer it emerged that a garda in Donegal who took his own life had been the subject of a GSOC investigation following a fatal traffic accident - but was not told that he had been cleared of wrongdoing.

In a letter to his wife, Sergeant Michael Galvin of Ballyshannon Garda Station in Co Donegal said he could not take the pressure of the GSOC investigation which had left him feeling like a criminal.

Last week it was revealed that GSOC accessed journalists telephone records.

There are also concerns it has accessed one journalist's emails contacts.

Read More:  Watchdog has lurched from one crisis to next

Is it too much to hope for law on snooping to be changed before election is called?

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