News Colum Kenny

Saturday 20 September 2014

Hitting a wall of silence over leaked garda report

It’s scandalous how the Justice Department is ignoring its legal requirements

Published 25/05/2014 | 02:30

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Former Minister for Justice Alan Shatter
Former Minister for Justice Alan Shatter
Whistleblower Garda Sgt Maurice McCabe. Photo: Tom Burke
Whistleblower Garda Sgt Maurice McCabe. Photo: Tom Burke
Sean Guerin’s report has vindicated Gda Sgt Maurice McCabe. Picture: GERARD HORE
Sean Guerin’s report has vindicated Gda Sgt Maurice McCabe. Picture: GERARD HORE

The Department of Justice has failed to comply with the law. It has not answered a Freedom of Information request relating to a leaked Garda Inspectorate report and other matters.

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This failure comes just weeks after then Minister for Justice Alan Shatter was found to have breached data protection legislation and subsequently resigned.

In an independent report for the Taoiseach about the allegations of Sergeant Maurice McCabe, Sean Guerin SC commented in May on the failure of the Department of Justice to produce or make appropriate written records. Minister for Transport Leo Varadkar subsequently claimed that the department was not fit for purpose.

While the Department of Justice has much on its plate, the leaking of a confidential Garda Inspectorate report is no minor matter.

The confidential report was leaked in full or in part to RTE in March, before Cabinet had a chance to discuss it. So who leaked it and why?

According to the Garda Inspectorate, on or about January 22 last, it sent in confidence two copies of its draft report on the penalty points system to Brian Purcell, secretary general of the Department of Justice, and two further copies of the same document to Michael Flahive, assistant secretary. On or about  February 28 it sent in confidence two copies of its final report on the same matter to the Minister for Justice, and one copy each to Mr Purcell and Mr Flahive.

Copies were also sent only to the Garda Commissioner. The Garda Inspectorate informed the Sunday Independent in March that it was absolutely satisfied that any leak had not originated within its own office. The gardai said that they had “respected the confidential nature of the process involved”.

However, when the Department of Justice was asked in March about the leak of this highly confidential document, it declined to answer.

For this reason a Freedom of Information (FOI) request was subsequently submitted to the department in an effort to uncover how or from where the document might have been leaked.

Nobody is entitled to leak a confidential report, or use public resources to spin such a report for political purposes or to create a distorted impression of its findings. So what happened in this case?

The related FOI request was received by the Department of Justice on  April 9. The Freedom of Information Act requires any official body that receives such a request to decide within four weeks whether to grant or refuse to grant the request, or to grant it in part. It also requires it to give notice in writing of its decision to the person requesting information.

Well, four weeks came and went. There was not even the courtesy of an email or phone call to explain the department’s failure to comply with the law or to seek more time. Nothing. We have now appealed what is objectively a refusal of information.

Freedom of Information law in Ireland is frequently criticised as too weak, and the Labour Party promised to strengthen it. Even in its weak form it can be ignored by officials without any fine or other sanction. And there are off-putting financial charges, and other bureaucratic hurdles for applicants. For example, it was not possible to apply and pay the fee online in this instance, thus incurring further delay.

Meanwhile, related information in this case was sought via the department’s press office concerning matters that could not be discovered under the Freedom of Information Act. But, in a touch worthy of Kafka, the office replied: “The Freedom of Information request is being processed and in the circumstances you will appreciate that we are not in a position to make any comment at this stage.”

The FOI request did not preclude an answer about related matters. And this is not the first time recently that the department has shown itself unwilling to provide responses to press queries on matters of public importance. There had earlier been its failure to answer when asked in March if it was concerned that this confidential report had been leaked, and if so would there be an investigation of that leak.

Similarly, attempts to get a number of other official agencies to respond to the apparent loss in Garda custody of a computer in a child sex abuse case that may contain incriminating evidence simply met with a blank wall.

RTE is also playing coy when it comes to the leak to it of all or part of the Garda Inspectorate report. Delighted with its scoop, it led with it on its main news bulletin on March 11 last, with Eileen Dunne telling viewers that RTE had “seen” the report.

Paul Reynolds then presented a news report which did not include certain criticisms of the system by senior gardai that other media would find significant when the full Garda Inspectorate report was later published. Was this merely an editorial judgement by RTE, which it is entitled to make, or had aspects of the report been spun to them and had RTE been used?

Asked last week to clarify if RTE had had an opportunity to read the entire Garda Inspectorate report prior to its news broadcast on  March  11 last, RTE refused to answer.

Viewers could easily have concluded from RTE’s broadcast that the station had in fact read the entire Garda Inspectorate report before exercising its respected editorial judgement in presenting an apparent synopsis of it.

For RTE not to be willing to clarify simply what it said in a broadcast gives rise to a suspicion that it was used.

For the Department of Justice to ignore its requirements under Freedom of Information legislation is scandalous.

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