On the 1st of November 2015 new legislation came into effect requiring private security investigators to be licensed with the Private Security Authority (PSA). The new requirements, enacted under the Private Security Services Act, 2004, represent a significant development in the continuing strengthening of privacy laws. The PSA was established in 2004 and up until now has been charged with the regulation of private security functions such as CCTV monitoring, private security, installation of monitoring and alarm devices and cash-in-transit. This is its first move into the investigative sector.
The main effect of the legislation is to ensure that all private investigators (whether individuals or organisations) hold a licence, subject to certain conditions. These include: Garda vetting, an external audit, a clean criminal history and the ability to pay a licence fee of between €1,000 and €25,000, dependant on turnover, every two years. Private investigators must also have their home or place of work fitted with an alarm system, a safe and CCTV to ensure the security of any personal data held on their premises. It is now an offence to advertise oneself as a private investigator, or employ one, without holding a licence. At the time of writing 31 Private Investigator Licences have issued to individuals and companies across Ireland.
Regulation is overdue in the industry and many factions have welcomed the changes. In 2014 a number of scandals blighted the ‘tracing’ industry, in which solicitors, banks or credit unions employ private investigators to locate and confirm addresses for debtors. Several tracing agents were found to have been using illegal, or at least unethical, tactics to uncover data. This included inappropriate access to the Garda Pulse system, and ‘blagging’ of personal details from State institutions and other data repositories such as the HSE and Department of Social Protection. Two directors of MCK Rentals Ltd, Wendy Martin and Margaret Stuart, were the first private investigators to be prosecuted under the Data Protection Act for conducting enquiries in this manner in 2014. Even this week an Irish financial institution has been embroiled in allegations regarding the engagement of a private investigator that was allegedly found to be holding data illegally obtained from the Department of Social Welfare. These cases and others have highlighted the need for increased oversight in this area.
However, the Private Security Act introduces a new and complex direction for the Authority’s remit. Questions have been asked as to whether there was sufficient consultation with the legal profession prior to the enactment. This is illustrated by the sheer number of clarifications regarding the requirements to hold a licence that had to be issued by the Authority in the weeks leading up to the 1st November 2015.
For example, many solicitors who do not directly use tracing services may think this legislation will not affect them. However, virtually all legal firms will need to employ a summons server at some stage during the course of their business. The PSA states that “serving a summons on a person named on the summons at the address shown on the summons and on the basis of information provided with the summons documentation is not a licensable activity” – but if a summons server carries out any kind of “investigative activities” in the course of their work they are required to hold a licence. This detail will inevitably cause some degree of confusion, betraying the lack of consultancy with the industry. How does one define ‘investigative’? It’s not as clear-cut as you might assume.
While it may make sense, from a regulator’s point of view, to expressly prohibit unlicensed summons servers from attempting to discover a different service address to the one provided by a solicitor, in practice efficient summons service often depends on informal investigative work. This can include making enquiries with neighbours about when an individual might be home or whether they have moved away entirely, and it can prevent unnecessary fruitless attempts at service. Time will tell, but it is easy to foresee the licensing requirements causing additional delays and costs for Court processes and adding an extra layer of red tape to litigation.
The profile of the average personal investigator might also surprise some. They are largely retired, often ex-Gardaí, who take on a few hours of work a week to stay active and engaged. Many have long-established relationships with local solicitors. Almost all have a turnover at the low end of the €10-€300,000 band proposed by the PSA. These small operators will be most affected by the new legislation. They are faced with three choices: stump up approximately €5,000 in order to obtain their own licence; work exclusively for a licensed company with its own licence, which may mean an inconvenient level of work for their lifestyle; or simply give up the game entirely. This will inevitably lead to fewer choices for solicitors as investigators are forced to professionalise or retire.
Freelance tracing agents and summons servers often work with solicitors on a casual basis and are relied upon for their thoroughness, experience, and vital local contacts. Many of these casual investigators I have spoken to are indeed being forced to restrict their activities to basic summons serving, or have simply given up. One long-time tracing agent in the west of Ireland states that he cannot obtain a licence as one of the requirements is to have your name and address listed on a publicly available register – something which would expose him, as a former Garda, to potential unwanted attention.
This loss of independent investigators – although not having a large impact at present – has opened up a gap in the market for companies to set up quickly. Under the new regulations, a company’s licence covers all of their employees and any contractors or agents who work exclusively for them. It is far more financially viable to obtain a licence as an organisation rather than individually due to the ‘turnover fee’ and security requirements. However, while these new operations may have the finances and contacts to obtain a licence, it does not follow that they have the necessary experience or track record. The holding of a licence might obscure this. It is important to remember when contracting a licensed summons service or tracing agency that, although they have fulfilled the Authority’s requirements they may not necessarily be the type of person you want to do business with.
While the new Act does go some way to preventing the shocking disregard for data protection and personal privacy displayed by some investigative services in the past, it is our view that the manner in which it has been implemented means that its impact will be felt just as strongly on ethical, above-board investigators.