Written Answers. - Health Service Staff.

Austin Currie

Question:

814 Mr. Currie asked the Minister for Justice, Equality and Law Reform if there has been a change in the clearance system operated by his Department in relation to access to children by part-time workers and students; and, if so, the reason for this change. [1356/99]

This is a very complex matter and one which is clearly of considerable importance as it relates to the security and safety of children while at the same time, bearing on the privacy rights of individuals.

At the outset, in order to set matters in context, I wish to emphasise that there has been no change in the arrangements whereby the Garda Síochána carries out clearance checks in respect of full-time prospective employees in the health care area who would have substantial access to children or vulnerable individuals. These arrangements are implemented by the Garda Síochána in strict adherence to legal advices received in the matter from the Attorney General. I am aware that there are a large number of other organisations with responsibility for child care, who engage staff, ranging from full-time paid staff to voluntary staff, who are not covered by the arrangements I have already described. To guard against undesirables participating in such activities and as I mentioned in reply to Parliamentary Question No. 356 on 30 June 1998, my Department, together with the Garda authorities, are at an advanced stage of discussion with FÁS, the aim of which is to extend to employees having substantial contact with children in non-residential community employment schemes the same arrangements as apply to prospective employees in the health care area.

In the interim, in the absence of any formal procedure, a practice has developed whereby employers of prospective employees, not coming under the formal arrangements were, with the written consent of these employees, requesting the Garda for copies of "personal data" relating to individuals concerned under section 4 of the Data Protection Act, 1988. This data would have included any personal data held on the Garda criminal records database.

I am informed by the Garda authorities that they were recently advised by the Data Protection Commissioner that section 4 of the Data Protection Act, 1988, does not provide for the disclosure of personal data to third parties, irrespective of whether the individuals in question had consented to allow the Garda to respond to the prospective employer and the Garda authorities have, on the advice of the Data Protection Commissioner, ceased to do so.

The Data Protection Commissioner has also advised that section 4 of the Data Protection Act, 1988, does not provide for a situation whereby an employer may request that a prospective employee himself should make a request under section 4 of the Act and insist on receiving from the individual concerned a copy of material received on foot of such a request. The Data Protection Commissioner's view is that the essence of data protection law is that it enhances privacy by putting the individual in control of his or her information, and that access sought by an individual on foot of a request to that individual from a prospective employer may be regarded as an unanticipated use of what was intended by the Oireachtas to be a key aid for individuals in protecting their privacy.
The latest contacts between my Department and the Data Protection Commission have identified possible ways to resolve this difficulty. Urgent consultations in this matter are ongoing between my Department, the Garda authorities and the Data Protection Commissioner with a view to identifying an alternative solution under the legislation. On conclusion of these consultations, I will make a further statement on this matter. I hope to do this very soon.