Former Justice Minister Alan Shatter has been successful in appealing the decision of the Data Protection Commissioner, who found that the former TD had breached the Data Protection Acts when he alleged that Mick Wallace TD had dodged penalty points for using his phone while driving.
Mr Justice Meenan found that the Commissioner had not followed fair procedures, and that in any event, the provisions of the Acts were incorrectly applied to the complaint.
In May 2013, on RTE’s “Prime Time”, Mr Shatter and Mr Wallace were interviewed concerning controversy over the penalty points system.
Mr Wallace claimed that it was unlawful for Gardaí to exercise any discretion in relation to the issuing of fixed charge notices for certain road traffic offences. In response, Mr Shatter said that it was entirely appropriate for Gardaí to exercise such a discretion, and alleged that Mr Wallace himself had been afforded such discretion when Gardaí refrained from giving him a fixed ticket charge and/or penalty points when stopping him with a mobile phone.
Thereafter concerns were expressed about confidential Garda information being used to damage political opponents.
In the Dáil Éireann the following week, Mr Shatter gave “a solemn assurance to the house” that he was “not in the business of receiving, seeking or maintaining confidential, sensitive information” from the Gardaí, nor were Gardaí “in the business of providing it…”
Mr Shatter further stated that the incident involving Mr Wallace had been “mentioned by the Garda Commissioner” during a conversation about the circumstances in which Gardaí exercised their discretion on traffic offences.
Mr Wallace submitted a complaint to the Data Protection Commissioner, and the Commissioner commenced an investigation. Mr Shatter was notified in a letter which stated that in the context of Section 2 of the Data Protection Acts, the Commissioner was satisfied that personal data was “processed” by Mr Shatter in the incident complained of.
In December 2013, Mr Shatter was informed that the Commissioner was going to carry out an investigation as to whether the Acts had been breached. Mr Shatter responded by expressly contesting whether the provisions of the Acts applied to the circumstances of the complaint at all.
The Commissioner issued his decision in May 2014, concluding that Mr Shatter was a “data controller” for the purposes of the Data Protection Acts.
The Commissioner concluded that “…Mr. Alan Shatter T.D. Minister for Justice and Equality, contravened the Data Protection Acts 1988 and 2003 as follows… Section 2(1)(c)(ii) by further processing Deputy Mick Wallace’s personal data in a manner incompatible with the purpose of which that personal data was obtained…”
Circuit Court Appeal
The decision of the Data Protection Commissioner was appealed to the Circuit Court.
Judge Linnane found that Mr Shatter did not have standing to bring the appeal, and further, that even if the issue of standing could not be sustained, that the Data Protection Commissioner considered the matter fully and fair procedures were followed.
Considering issues of “bias” and “pre-determination”, and referring to A.P. v. His Honour Judge McDonagh & Anor  IEHC 316; Justice Meenan was satisfied from all the evidence that the Commissioner had already pre-judged the central issue before deciding.
However, Mr Shatter remained engaged in the complaint procedure – raising the issue of “acquiescence”.
Applying Corrigan v. Irish Land Commission  I.R. 317, Justice Meenan found that the Commissioner was guilty of pre-determination of an important issue in the complaint. However, given that Mr Shatter did not take any steps to have the Commissioner recuse himself; Justice Meenan stated that he could not rely on this aspect of his appeal.
Central to the complaint was the “data” involved – in this regard, the Commissioner repeatedly referred to a “written note”. It was only on the date of the decision that it transpired that the “written note” was an email. Justice Meenan accepted that the Commissioner was never furnished with a copy of this email, but was “shown” it.
Justice Meenan stated that fair procedures required that a copy of this document should also have been shown to Mr Shatter.
Since Mr Shatter was not shown the email, he was deprived of an opportunity to make any observations or submissions concerning the central piece of evidence in the complaint.
This represented a fundamental flaw in the procedures followed by the Commissioner; and thus amounted to a “significant error” as per Ulster Bank v. Financial Services Ombudsman.
Data Protection Acts
Examining whether “data” as defined in the Data Protection Acts covered the aforementioned email, Justice Meenan was satisfied that the email was not “manual data” for the purposes of the Data Protection Acts.
Justice Meenan also had to consider whether the Commissioner was correct to find Mr Shatter a “data controller” for the purposes of the Data Protection Acts.
Section 1(1) defines “data controller” as “a person who, either alone or with others, controls the contents and use of personal data.”
in the context of an email “internal to An Garda Síochána”, Justice Meenan stated that it was difficult to see how Mr Shatter could control the “contents” of such an email as is required by the statutory definition.
This error of the Commissioner was underlined by s. 10(3)(a) of the Data Protection Acts – whereby the Commissioner, having found a person in breach of a provision of the Data Protection Acts may require such person to: “(a) to block, rectify, erase or destroy any of the data concerned …”
In any event, Mr Shatter would not have been able comply with such a request.
Allowing the appeal, Justice Meenan found that the Circuit Court judge erred in law in:
- holding that Mr Shatter did not have standing;
- finding that the Commissioner followed fair procedures;
- the application of the provisions the Data Protection Acts 1988-2003
- by Seosamh Gráinséir for Irish Legal News