Wednesday, 17 September 2014
Topical Issue Debate
Garda Síochána Ombudsman Commission
Last week, the Garda Síochána Ombudsman Commission, or GSOC, stated that its investigation into an alleged leak from its offices, which gave rise to substantial controversy earlier this year, was unsuccessful and that its report on the investigation will not be published. From the start of this affair, GSOC has sought to cover up and keep secret a disturbing level of incompetence and failure to comply with its statutory obligations. This is unacceptable. It is contrary to the public interest that the current GSOC commissioners remain in place and that these matters are left unresolved, particularly in light of new and additional GSOC powers proposed in forthcoming legislation.
In October 2013, GSOC commenced what the Cooke report clearly regarded as a premature public interest investigation into alleged surveillance of its offices. Under section 103 of the Garda Síochána Act 2005, GSOC commissioners had a statutory obligation to inform me, as the then Minister for Justice and Equality, and the then Garda Commissioner of the investigation. They did neither. On 25 November 2013, the chairman of GSOC, Simon O'Brien, and the commissioner Kieran FitzGerald were briefed by their investigators that there had been no "positive result" to the investigation. The chairman is recorded in the Cooke report at page 26 as making a note in his personal log:
This investigation is now closed. I need to think about reporting. This will be difficult, we have found nothing.In December, GSOC formally closed the investigation and, again, did not inform me as Minister or the then Garda Commissioner. Since the publication of the Cooke report there can be no dispute that it was under a statutory obligation to do so.
On 9 February 2014, as a result of a leak of confidential GSOC information, The Sunday Timespublished an article relating to the investigation. The following day, I met with Simon O'Brien, who verbally briefed me on the matter. Later that day, he furnished me with a written version of the briefing, which formed the basis of my statement to the Dáil on 11 February last. Commissioner Kieran FitzGerald confirmed that night on "Prime Time" the accuracy of what I told the Dáil. However, when appearing before the relevant joint Oireachtas committee, the commissioners proved incapable of detailing what occurred in a coherent manner and their confused narrative and vague innuendo laid the foundations for accusations subsequently made that I had misled the Dáil and weeks of unnecessary controversy. Inexplicably, GSOC commissioners took no steps to clearly set out the facts and facilitated the continuation of the controversy. Even more seriously, at the time of Mr. Simon O'Brien's meeting with me, in the written report I received from GSOC and in the presentation to the joint Oireachtas committee, the representatives of GSOC covered up the fact that they knew that a device about which they expressed concern was known by November 2013 to be randomly attempting to connect to a Bitbuzz Wi-Fi system in an Insomnia coffee shop located in the ground floor of GSOC's building, and posed no risk of surveillance.
On a radio broadcast subsequent to publication of the Cooke report, Mr. Simon O'Brien was asked why GSOC had failed to comply with its statutory obligation to inform me as Minister of its public interest investigation. He stated that "events overtook" them. This reference to the publication of The Sunday Timesarticle in February as the reason for GSOC's failure is disingenuous and not credible. It is clear from Mr. Simon O'Brien's log, as detailed in the Cooke report, that he was well aware of his reporting obligations on 25 November and, I believe, from the commencement of the public interest investigation he knew of GSOC's statutory obligations.
Most recently, GSOC has failed to successfully investigate the alleged leak which led to The Sunday Timesreport and, in refusing to publish the report of the investigation into the leak, clearly intends to conceal its content. I repeat what Judge Cooke stated in page 51 of his report, that the information revealed in The Sunday Timesarticle is "evidence of a serious breach of security". The Cooke report has essentially confirmed that what I informed this House about these matters was true by finding that "it is clear that the evidence does not support the proposition that actual surveillance of the kind asserted in The Sunday Timesarticle took place and much less that it was carried out by members of the Garda Síochána". It is also important to note that Judge Cooke found The Sunday Timesarticle to be "seriously inaccurate".
When it is alleged that members of An Garda Síochána fail to comply with their statutory obligations and rules and regulations, it falls to GSOC to investigate. To do so with credibility, GSOC must be above reproach. It clearly is not and I believe it is no longer acceptable that the failings of GSOC and, in particular, the GSOC commissioners be ignored.
I thank Deputy Shatter for raising on Topical Issues the completion last week by GSOC of its investigation into an alleged leak of confidential information concerning the public interest investigation into the alleged surveillance of its offices and its decision not to publish its report into the matter. The House is familiar with the background to this matter, which the Deputy has outlined, and, in particular, the article published by The Sunday Times, which claimed that GSOC was under hi-tech surveillance. While it was clear, following the inquiry by Judge Cooke, that the article contained serious inaccuracies, and while Judge Cooke found that the evidence did not support the proposition that actual surveillance of the kind asserted took place, it was nevertheless clear that The Sunday Timesjournalist, Mr. John Mooney, had received some confidential information relating to these issues, as GSOC had indeed engaged a UK firm, Verrimus, to investigate whether it was under surveillance, and had conducted its own investigation into these concerns.
GSOC engaged a senior counsel to conduct a fact-finding investigation to determine, so far as possible and on the balance of probabilities, the facts relating to this suspected disclosure of information. It is made clear in the report that the senior counsel was given access to all the information and records in the possession of GSOC and it states that he received co-operation from everyone concerned, except for the journalist, Mr. John Mooney, who declined to be interviewed. The senior counsel concluded that he is satisfied the journalist received confidential information from some person or persons associated with the Verrimus or GSOC investigations. He was not able, however, to establish when the journalist received such information, from whom he received it, or the exact nature of the information disclosed.
GSOC considered, in light of the public controversy that surrounded the entire matter, that it was appropriate that I be supplied with a copy of the report. I must stress, however, that it was not supplied to me under the relevant section, section 80, of the Garda Síochána Act 2005, which provides for GSOC reports submitted to me to be laid before both Houses. It was submitted to me by GSOC for information. In fact, GSOC stressed in the covering letter to me that it did not intend to publish the report as it contained personal data, which it said was impossible to redact effectively.
It was absolutely right, and indeed essential, for GSOC to inquire into a concern that confidential information relating to either the Verrimus investigation or GSOC's related investigation was leaked to a journalist. I have also made clear from the outset that I believe that as much information as possible on the outcome of the inquiry should be put in the public domain in the interests of transparency. That is why, while fully respecting GSOC's statutory independence, I have asked GSOC, in consultation with the senior counsel concerned, and with whatever level of redaction might be legally necessary, to consider now publishing the report in the public interest. I have taken legal advice on it and some legal redaction is necessary if there is personal data that it is inappropriate to release.
I thank the Minister for her response. I do not believe it tenable that the current GSOC commissioners remain in office, nor is it acceptable that the matter of the leak now be abandoned on the basis of the failed investigation. The possibility of further such leaks could seriously undermine current or future investigations into alleged Garda misconduct. The leaking of information of a confidential nature from GSOC is a criminal offence under the Garda Síochána Acts. Just as it is not acceptable that the Garda Síochána investigates itself, it is not adequate that GSOC now simply washes its hands of this matter. Action is required to restore GSOC's public credibility.
It is also not acceptable that the report furnished by GSOC to the Minister remain unpublished or that it be edited into incoherence before publication. I appreciate the Minister's wish that matters be as transparent as possible but that may not prove possible if it is left under the remit of GSOC and I, personally, would not have confidence in the manner in which it is approaching this matter. There should be full transparency and accountability and the report should be published in full. That is in the public interest, although I recognise that there are some who would prefer that this affair simply die a death and the controversy be not revisited.
Having regard to the damage done to GSOC's credibility, the extent to which that may taint any future investigations and reports, the risk of further leaks, the inordinate amount of Cabinet, Dáil and Oireachtas committee time spent on these matters and the media frenzy spawned by them, leaving matters as they are should not be acceptable to any Member of this House. It is also not acceptable to do so in the context of the additional powers being conferred on GSOC by new legislation. What Members of the House should require is that there is full transparency with regard to the investigation conducted, that the report in as detailed a fashion as possible be published and that whatever steps are required or necessary be taken to restore public confidence in GSOC and the credibility of those in a leadership position within GSOC.
I have made it clear that I have a copy of the report, which was prepared by a senior counsel for GSOC. GSOC has made it clear that it was not intended originally for publication. The Deputy will appreciate the legal point that full publication may give rise to personal data issues.
There may be implications for third parties, such as defamation and there will be some issues relating to operational matters. I understand the point made by the Deputy that redaction can be problematic from a practical perspective in respect of the coherence of the overall report if and when redactions are made. From a legal perspective, redactions must be made if there was an infringement on personal data or if there were defamation issues in the report. The Deputy will accept that.
I appreciate the concerns raised in respect of transparency and accountability with regard to the report. There is a major public interest in ensuring that as much information as possible is made available, consistent with the legal rights of those involved. I have asked GSOC, in consultation with the senior counsel who prepared the report, who knows the full facts and how legal rights must be protected, with whatever level of redaction might be necessary, to consider publishing the report in the public interest.