FID wants to be exempted
The Financial Investigations Division (FID) has asked to be exempted from the Data Protection Act, which the Government is seeking to have passed in Parliament.
At yesterday’s meeting of the Joint Select Committee of the House of Representatives, which is taking submissions from various interest groups, acting director of the FID’s legal unit Alethia Whyte outlined several critical areas which, she said, could be of conflict, given the nature of the division’s work.
The FID is a division in the Ministry of Finance and the Public Service which was established in 2002 to investigate money laundering, financial crimes and corruption. It is also mandated to detect, deter and support the prosecution of offences under various legislation such as the Proceeds of Crime Act.
Under the Data Protection Act, which is a companion measure to the controversial National Identification Registration Bill, the FID would be considered a “data controller” as it processes data in its work.
Yesterday Whyte argued that the exemptions in the Bill, which could apply to the division, are inadequate for the purposes of the FID, and could, among other problems, create loopholes for people under investigation to seek to thwart its efforts or negatively impact investigations.
Citing some of the problematic provisions, she noted that, for example, in section 33 of the Bill, the minister of national security could find himself committing a “tipping offence” in the Proceeds of Crime Act while in the process of defending to the court his reason for issuing a certificate exempting personal data from all or any provisions of the Act.
“It opens up the minister to judicial review by different litigants, and in order for the minister to be able to defend his reason for issuing the certificate in the first place, he would be required to convince the court as to why he thought the personal data should be exempt, and in doing so he may reveal the investigations themselves,” she explained. “It’s a very serious offence, and we are of the view that how the Act is drafted now can be inconsistent with this provision in the Proceeds of Crime Act.”
Whyte argued that because some of the elements of the exemptions which apply to the FID are subjective, they can encourage litigation as a data subject can ask the court to decide whether the exemption should apply.
“We believe this continuous litigation would in itself be prejudicial to the investigations that are being conducted,” she said. “The encouragement of litigation would also take away from our fundamental function because we would now have to put resources into defending these claims that are brought before the court. We are also of the view that the persons being investigated may use these avenues to go to the courts as a weapon to try to get information in a deliberate attempt to thwart investigations.”
Whyte stressed that this would force the FID to reveal the cause of the exemption to the litigant, who is the very subject of those investigations. She pointed out that the FID already has safeguards for the protection of data such as the obligation for secrecy, and being signatory to the Egmont Group, which imposes restrictions on the use and protection of information.
The Egmont Group is a united body of 155 financial intelligence units that provides a platform for the secure exchange of expertise and financial intelligence to combat money laundering and terrorist financing.
The JSC also took submissions from the Media Association of Jamaica, the Broadcasting Commission, and the Jamaica Chamber of Commerce.