Assessment and Use of Vetting Disclosures

We’re taking a look today at section 16 of the vetting legislation which deals with the procedures for vetting disclosures.

In particular, section 16 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – that looks at the assessment and use of vetting disclosures by relevant organisations.

We're going to look at the uses permitted by relevant organisation of information disclosed as part of the vetting process; we'll look at the offence created for not using the information in a manner authorised under law; and finally, we'll check out the penalty for breach of the offence.

MAKING THE VETTING DISCLOSURE AVAILABLE TO THE APPLICANT

S.16(1) creates the obligation on the relevant organization to provide to the applicant (the person to whom the vetting disclosure relates) a copy of the vetting disclosure as soon as practicable.

Assessment and use of vetting disclosures by relevant organisations.

TIMELINES IN WHICH TO PROVIDE IT

The vetting disclosure is to be provided to the applicant ‘as soon as practicable’. This is an obligation of speed that is a high bar to get over.

PERMITTED USE OF INFORMATION DISCLOSED

Under the vetting legislation, there are two primary uses permitted of the information disclosed in the vetting disclosure. Both uses are flipsides of the same coin, as they both address use of the information as part of the process of assessing a person’s suitability to carry out ‘relevant work or activities’.

The text here was deleted by virtue of s.22 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016:

And was replaced by the following:

The first use hinges on use of the information as part of an assessment of a person’s ‘suitability’ to do the ‘relevant work or activities’ of the organization.

The second use hinges on use of the information disclosed in the vetting disclosure in the assessment of a person’s suitability to be registered, licensed, considered fit to practice or otherwise authorised (howsoever described) to do ‘relevant work or activities’.

USE AND DISCLOSURE OF INFORMATION IN VETTING DISCLOSURE

Sub-section (3) of s.16 authorises use and disclosure of the information contained in a vetting disclosure but only in circumstances envisaged by the vetting legislation or as authorised by law outside of the vetting legislation.

Importantly, the information contained in the vetting information can only be used or disclosed by the relevant organization if these conditions are met, and cannot be used for purposes outside those set out in the vetting legislation and other laws

The text in red is what was added in the 2016 revision to the vetting legislation, by virtue of s.22 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016:

CREATION OF OFFENCE

A person – that includes a corporate body – that breaches the s.16(3) ban on improper use or disclosure of a vetting disclosure - is automatically liable on s.16(4) of the vetting legislation and guilty of a criminal offence.

(4) A person who contravenes subsection (3) shall be guilty of an offence.

S.27 PENALTIES FOR S.16(4) BREACH

You have to leaf the legislation a bit further to find out what happens for a breach of the s.16(4) prohibition on unauthorized use or disclosure of information contained in a vetting legislation.

Section 27 is the relevant bit. It tells us that for a breach of s.16(4) of the vetting legislation, and depending on the court which hears the case, there’s a fine of up to €10,000 and/or 5 years in prison (with lesser fines or prison terms limited to a maximum of 12 months, where the case is dealt with by a District Court judge (“on summary conviction”).

SUMMARY

Section 16 of the vetting legislation puts an obligation to provide the information ‘as soon as practicable’ to the person being ‘vetted’ (i.e. applying for vetting disclosure). Section 16 itself was amended and updated by s.22 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

Section 16 of the vetting legislation sets out the permitted uses of information disclosed as part of the vetting disclosure.

The uses are essentially flipsides of the same coin, such that the information disclosed can be used to assess a person’s suitability for relevant work or activities. The section points out that the uses need to be set out in the vetting legislation, or as otherwise authorised at law (i.e. outside of the vetting legislation).

Finally, an offence is created under s.16(4), breach of which offence triggers the monetary and/or prison term penalties (on conviction) set out in s.27 of the vetting legislation.