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Data Retention

Garda Inspectors to be allowed ask for phone location data as law amended following Dwyer case

The current system was put in place following the striking down the Communications (Retention of Data) Act 2011 on privacy grounds.

THE RANK OF GARDAÍ permitted to seek “cell site location data” from phone service providers is to be lowered with the aim of freeing up garda time via rostering arrangements. 

Currently Inspectors must apply to a Superintendent – known in this context as a ‘superior officer’- or above to approve the release of such data who then receive approval from the District Court.

But under proposed changes, Inspectors will now fall into the category of ‘superior officer’ and be able to seek approval from the District Court.

Minister for Justice Helen McEntee today received Cabinet approval to amend the Communications (Retention of Data) Act 2022 to allow the change in the interests of protecting the safety or life of persons.

The current system was put in place following the Court of Justice of the European Union striking down the Communications (Retention of Data) Act 2011 on privacy grounds. This was in the wake of the convicted murderer Graham Dwyer successfully challenging the State’s right to retain data under the 2011 legislation.

As it stands, the superior officer must apply a proportionality and necessity test before making the decision to request the data and then apply to the District Court within 72 hours to affirm that decision.

Five Superintendents have been rostered on a 24 hour seven-day-week basis for this purpose, which is proving increasingly disruptive to the work of the gardaí according to the Department of Justice.

The Minister’s proposal today will see the rank lowered to allow for more flexible rostering in the gardaí and greater continuity in terms of the superior officer making the initial decision and applying to the District Court. 

The Department of Justice has said the new proposals will not affect other data access (e.g. retained traffic and internet source data) arrangements under the Act.