Circuit Court dismisses Shatter’s appeal against Data Protection Commissioner
The Circuit Court has dismissed Mr Shatter's appeal against the Data Protection Commissioner's (the DPC) decision that he breached the Data Protection Acts 1988 and 2003 (the DPAs), by disclosing Mr Wallace's personal information on RTE's Prime Time. The Court found that Mr Shatter, in his personal capacity, did not have standing to bring the appeal, and furthermore that it had not been shown that the DPC's decision was vitiated by any serious or significant error or series of errors.
Background - the complaint
On 20 May 2013, Mr Wallace made a complaint to the DPC alleging that his personal information had been improperly obtained and disclosed by Mr Shatter when he was Minister for Justice and Equality on RTE's Prime Time programme, during a debate on the penalty points' controversy. It was alleged by Mr Shatter that Mr Wallace had been stopped and cautioned for use of a mobile phone whilst driving.
The DPC's investigation
In the course of his investigation of the complaint by Mr Wallace, the DPC found that the information in question had been conveyed verbally by the Garda Commissioner to Mr Shatter in his capacity as Minister. The DPC concluded that the information was "personal data" under the DPAs, but was lawfully passed on to the Minister under section 41(d) of the Garda Siochána Act, 2005 (which requires the Garda Commissioner to keep the Minister fully informed of matters that he feels should be brought to the Minister's attention) and Section 8 of the DPAs. However the Minister was bound by the DPAs to comply with its requirements in regard to use of the personal data which he had obtained from the Garda Commissioner.
The DPC's decision
On 6 May 2014, the DPC made a formal decision finding that the Minister Shatter and the Garda Commissioner were joint "data controllers" in relation to the personal data of Mr Wallace, and therefore could only disclose it in accordance with the DPAs. The DPC rejected Minister Shatter's argument that section 2(A)(1)(d) applied, as he was not satisfied that the disclosure by the Minister was necessary in pursuit of his legitimate interests having regard to the rights of Deputy Wallace regarding his personal data, and took the view that none of the other legitimate processing conditions in section 2(A)(1) applied.
Accordingly, the DPC found that Minister Shatter had breached section 2(1)(c)(ii) of the DPAs, by further processing Mr Wallace's personal data in a manner incompatible with the purpose for which that personal data was obtained.
Counsel for the DPC raised a preliminary objection to Mr Shatter's standing to bring this appeal by reason of the fact that the office of Minister for Justice and Equality is a separate legal personality from Mr Shatter as an individual citizen and so Mr Shatter could not appeal against a decision that relates to the office of Minister. It argued that the DPC's decision was made against Mr Shatter in his capacity as Minister for Justice and Equality and not in his personal capacity as an individual citizen.
The decision of the DPC was sent to and addressed to Mr Shatter, TD Minister for Justice and Equality at his then official address. The following day Mr Shatter resigned as Minister for Justice, and the appeal was brought by Mr Shatter in his personal capacity.
Judge Jacqueline Linnane, at the Circuit Court, dismissed the appeal on two grounds:
(1) Mr Shatter did not have standing to bring the appeal, as the DPC's decision had been made against Mr Shatter in his capacity as Minister for Justice and Equality, and not in his individual capacity as an individual citizen.
(2) Applying the test laid down in Ulster Bank v McCarren (Unreported, High Court, Finnegan P. 1 November 2006), Mr Shatter had not shown, as a matter of probability, that the DPC's decision was vitiated by any serious or significant error or series of such errors.
The decision, once again, demonstrates that to succeed in a statutory appeal the claimant must establish, as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors, having regard to the degree of expertise and specialist knowledge of the regulator. The differential standard is that applied by Keane C.J. in Orange v The Director of Telecommunications Regulation and Anor and not that in The State (Keegan) v Stardust Compensation Tribunal.
Mr Wallace is, reportedly, considering seeking damages from the State regarding the breach. In order to succeed in such a claim, however, he will need to show that he suffered loss or damage as a result of the breach. This was demonstrated in the case of Collins v FBD Insurance  IEHC 137, where the High Court set aside an award of compensation made by the Circuit Court to a data subject for breach of his data protection rights, on the grounds that no loss or damage resulted from the breach.
For more information please contact Davinia Brennan, firstname.lastname@example.org or your usual contact in A&L Goodbody.
Date Published: 3 February 2015