Data Protection Commissioner

Guidance Note: data protection considerations when vetting prospective employees

 

  1. Purpose of the Guidance Note

This guidance note focuses on data protection considerations that must be taken into account before vetting prospective employees/volunteers/students in certain specified sectors.  It provides guidance for organisations on how to treat information that is provided to them on foot of a vetting procedure.  This note also provides background information about how vetting procedures currently operate in this jurisdiction.

 

Under the Data Protection Acts information about the commission or the alleged commission of an offence by a person falls within the definition of sensitive personal data.  Currently, there is no comprehensive statutory basis which underpins the vetting process.  The Office of the Data Protection Commissioner supports the current procedure for managing requests for vetting in this jurisdiction.  The procedure is based on the consent of the person to the release of certain types of information held by An Garda Síochána in respect of that person.

 

  1. How the vetting process works

a)     Who can be requested to undergo vetting?

The Central Vetting Unit within An Garda Síochána conducts vetting for organisations that are registered with the Unit for this purpose.  At present, employees/volunteers/students are requested to consent to a vetting procedure before working in the following roles:

  • Prospective employees of the Health Service Executive and agencies funded by the Health Service Executive where the work involves access to children and vulnerable adults;
  • New teachers in the primary and post-primary sector;
  • New employees and volunteers in the youth work sector and certain sports organisations;
  • Staff, students and volunteers in the childcare sector;
  • Staff working in care homes for older people.

Vetting also takes place in relation to:

  • State employees;
  • Employees covered by the Private Security Services Act 2004.

 

Standard procedures are in place for organisations registered with An Garda Síochána for vetting purposes.  For vetting to occur, vetting subjects must complete a formal Garda Vetting Application Form.  Vetting subjects must give written authorisation for An Garda Síochána to disclose to the registered organisation details of all prosecutions, successful or not, pending or completed and/or details of all convictions, recorded in the State or elsewhere in respect of them held on record by An Garda Síochána.  Only specific people recognised as authorised signatories in the approved organisations can submit signed authorisation forms to the Garda Vetting Unit for processing.  Once processed, vetting results are transmitted from the Garda Central Vetting Unit directly to the authorised signatory that submitted the application in respect of the individual for further consideration by the organisation.  

 

b)     Information that may be released as part of the vetting process

When a vetting subject gives their written permission for An Garda Síochána to disclose details of all prosecutions, successful or not, pending or completed and/or details of all convictions, recorded in the state or elsewhere in respect of them to a registered organisation, all such details as held on record by An Garda Síochána in respect of the vetting subject are disclosed. In the case where vetting subjects have been prosecuted, notwithstanding the court outcome in respect of the prosecution, the factual details contained in the resultant court outcome are disclosed to the authorised signatory.

 

c)     Dispute Resolution

All organisations registered for Garda Vetting participate in a dispute resolution procedure designed to address any instance in which a vetting subject disputes the details contained in the relevant Garda Vetting disclosure.  The procedure may be activated by the vetting subject by indicating the basis of their dispute in writing to the authorised signatory who received the Garda Vetting disclosure. The authorised signatory then resubmits the complete application file to the Garda Central Vetting Unit for the conduct of further checks.

 

d)     Probation Act 1907 and Vetting

In instances where, in the court outcome, the court applies the provisions of the Probation Act 1907, the charges are dismissed.  However, in order to avail of the provisions of the Probation Act 1907, the case is marked as 'proved'. While individuals often consider that they do not have a formal criminal record, when a person gives their written authorisation for vetting to be conducted the authorised signatory for the registered organisation is informed of the charge as a 'non-conviction' rather than a formal conviction.

 

e)     Age

There is no Garda Vetting for people under the age of 16.  However, if a candidate is aged 16/17 and requires vetting (e.g. to enter a child care course in college) the consent of a parent or guardian is sought by An Garda Síochána.

 

f)       Retention of vetting forms by An Garda Síochána Central Vetting Unit

When the Garda Vetting Unit has complied with a vetting request, the original vetting application form is returned to the authorised signatory for the registered organisation.  The Garda Vetting Unit does not retain a copy of this documentation.  Information about the retention of these forms by registered organisations is dealt with in the next section.

 

  1. Important data protection guidance regarding the use/storage and retention of information received by an organisation which carries out vetting

 

a)  Can information received as part of the vetting process be shared by one organisation with another?

 

As mentioned previously, the Office of the Data Protection Commissioner supports the current procedure for managing requests for vetting in this jurisdiction.

 

As outlined in Section 2 of this guidance note, the consent given by an individual for vetting is specifically linked to the disclosure of their information to a specific registered organisation to allow the organisation to make an assessment decision about allowing that individual to take on a particular role within that organisation. The Office of the Data Protection Commissioner does not consider it appropriate that information disclosed to one named organisation for this sole purpose would be shared by that organisation subsequently with any other organisation, even with consent (except where the registered organisation is clearly undertaking the vetting on behalf of a related organisation). There are a number of data protection reasons for this.

 

Firstly, as the vetting process may involve the provision of sensitive personal information about a person, it is absolutely imperative that there is no drift in terms of the use to which such information may be put or in terms of the identity of the organisation using the information (other than within the restricted context outlined previously).

 

Secondly, An Garda Síochána ensures that confidentiality and data protection requirements are met by restricting vetting disclosures to persons trained as authorised signatories.  The further disclosure of such information to other parties, even with the consent of the vetting subject, would not be appropriate and will increase the potential for breaches of data protection rights.

 

Aside from data protection concerns, An Garda Síochána wish to ensure the integrity of the vetting process.  To achieve this it is necessary that each organisation should separately vet each person rather than share potentially dated information that was supplied as part of a previous vetting request. 

 

b)  Secure storage of vetting information

 

The secure storage of vetting disclosures made by An Garda Síochána to authorised signatories is another key data protection consideration in this area.  The content of such disclosures constitute sensitive personal data.  Therefore they must be held in a secure manner with access restricted to a small number of authorised personnel.

 

Vetting disclosures may only be used for the purpose for which they were provided to an organisation in accordance with the consent of the vetting subject.  They cannot be further processed or disclosed to other parties.

 

c)  Retention of vetting information

 

Personal data must be destroyed when the purpose for which it was sought has expired.  This can be problematic in relation to the continued holding of vetting disclosures as the Data Protection Commissioner is concerned that their long-term retention creates the potential for unauthorised access and use.  Accordingly, the Office of the Data Protection Commissioner recommends that vetting disclosures should be routinely deleted one year after they are received except in exceptional circumstances.  In case of future queries or issues in relation to a vetting disclosure, the reference number and date of disclosure may be retained on file and this can be checked with An Garda Síochána.  This practice is sufficient for all organisations engaged in vetting, including organisations subject to external statutory inspection of staff vetting practices. 

 

In regard to all unsuccessful employment applications, the vetting disclosure and all other personal data collected in the recruitment process should be deleted after a year in line with standard advice in this area.  It is important that organisations are aware that an individual has the right to make a request for a copy of information held about them.

 

This requirement that an organisation does not share with another organisation information on individuals received as part of the vetting process does not prevent the supply of the vetting response to the vetting subject. It is good practice to give it to them and in any case they would have a right to access a copy of their personal data under section 4 of the Data Protection Acts 1988 & 2003.

 

  1. Can Garda Vetting be carried out by employers in sectors other than those mentioned in Section 2 of this guidance note?

 

In general, An Garda Síochána will only carry out vetting for approved organisations in designated sectors.   Such a service is not generally available to other employers.  While An Garda Síochána are required to provide information from their records in response to access requests from individuals, the responses to such requests are not of the standard applied to vetting applications.

 

Under section 4(13) of the Data Protection Act,s it is an offence for an employer to require an employee or prospective employee to make an access request related to their employment (an "enforced subject access request"). 

 

 

 

 






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