Review of law allowing State access to phone records ‘complex’

The Department of Justice has said it cannot say precisely when a review by former chief justice Mr Justice John Murray of legislation under which the Garda watchdog accessed journalists' phone records will be completed.

Tánaiste and Minister for Justice Frances Fitzgerald appointed the judge to carry out the review in January, after it emerged the Garda Síochána Ombudsman Commission (Gsoc) had accessed the phone records of two journalists.

It was investigating the alleged leaking of information by gardaí in relation to the death in 2007 of the model Katy French.

Mr Justice Murray had been expected to report on the matter within three months, but the department said on Wednesday that, due to its complexity, it was not possible to say precisely when it would be finished.

The judge has been asked to examine the legislation in other countries and best international practice for access to private communications information.

Under the Communications (Retention of Data) Act 2011, An Garda Síochána, the Revenue Commissioners, the Competition and Consumer Protection Commission and the Defence Forces can seek data from providers about individuals' phone and internet records.

Gsoc is not specifically named in the Act, but under its own establishing legislation, designated officers of Gsoc are conferred with Garda powers.

The legislation is currently being challenged in the courts by the privacy advocacy group Digital Rights Ireland.

Announcing the review in January, Ms Fitzgerald said the issue was “complex” because there needed to be a balance between the freedom of journalists to do their work and the need for crimes to be investigated.

Internal approval

The National Union of Journalists and civil rights groups have criticised the legislation, which allows agencies to access records with only internal approval and without informing the individuals concerned.

In a statement, the Department of Justice said the work of the review involved the analysis of “complex aspects of Irish and international law, particularly European law, in this area as well as consultation with relevant agencies and stakeholders”.

“Given the complexity of the work involved and the need to receive and consider submissions and observations from a range of agencies and stakeholders it is not possible to say precisely when it will be completed.

“Recent developments in EU caselaw also require detailed scrutiny. Judge Murray intends to complete the review as quickly as possible however consistent with a comprehensive assessment of the issues involved.”

In a submission to Mr Justice Murray published this week, the Irish Human Rights and Equality Commission said it regretted that the privacy rights of ordinary adults and children fell outside the scope of the review.

The body also wrote that it was "somewhat surprising that the existence of comparatively permissive surveillance powers in Ireland came as news to the media".

The commission said inadequacies in the current framework for the retention of communications data called for “root and branch reform”.

It makes a number of observations, including that failure to extend surveillance powers to Gsoc “may undermine confidence in the body to effectively investigate serious wrongdoing”.

It says that in contemplating any reform, it is useful to consider the wider benefits of protecting privacy rights, which were “inextricably linked to the protection of free speech, free association, the right to protest, freedom of conscience, and trust in government, amongst other side benefits to the public”.