High Court: Individuals are not entitled to an oral hearing in complaints to the Data Protection Commissioner
The High Court has refused a man’s application for judicial review in relation to a data protection complaint. In the application, the man sought to challenge the Data Protection Commissioner’s refusal to investigate disputed facts of his data protection complaint via an oral hearing, with the Court finding that the Commissioner was not empowered to do so under the Data Protection Acts 1988 and 2003.
In December 2012, Garda Kevin Martin submitted a complaint to the Data Protection Commissioner alleging that his data protection rights had been breached, asking that the Commissioner conduct an investigation into the alleged breach.
The circumstances that lead to the alleged breach were in relation to a loan account that Mr Martin had with St. Raphael’s Credit Union, County Dublin. In November 2012, a representative of the Credit Union visited the home of Mr Martin’s father, allegedly disclosing confidential information in relation to Mr Martin’s accounts and stating that he “had substantial loans with the Credit Union that were in difficulty”.
In response to the complaint, the Credit Union disputed the allegations, stating that their representative was adamant that he had not disclosed any personal information and even had trouble getting the correct telephone number of Mr Martin from his father.
As a result, the office of the Commissioner wrote to Mr Martin in August 2013, stating that it was not possible “to form a definitive opinion on a complaint that concerns an allegation of verbal disclosure with one party stating one thing and the other party another. In the absence of documentary evidence, it would be impossible to prove that… Mr. Kevin Martin’s personal information was unfairly disclosed in accordance with the terms of Data Protection Acts 1988 and 2003 by St. Raphael’s Credit Union”.
From July 2014 to January 2015, Mr Martin repeatedly requested an oral hearing to be carried out in order to investigate his complaint.
In response to this, the Office of the Commissioner sent a letter to Mr Martin in February 2015, stating, “the position of this Office is that we have investigated the matter fully, based on the information provided by you and St. Raphael’s Credit Union. We do not consider that any further discussion on the matter will result in us coming to a different conclusion. In addition, there is no provision or obligation in s. 10 of the Data Protection Act 1998 and 2003, which provides for the investigation by complaints submitted to the Data Protection Commissioner for the holding of an oral hearing such as you have requested”.
Subsequently, Mr Martin was granted leave to seek judicial review in March 2015. The grounds of the application were that the Commissioner “failed to carry out a full and proper investigation pursuant to section 10 of the Acts in accordance with the requirements of constitutional and natural justice, and that these required the Commissioner to conduct an oral hearing to resolve a disputed issue of fact”.
In his lengthy High Court judgment, Justice Haughton ruled that neither the EU Directive 95/46/EC on data protection, nor the Data Protection Acts of 1988 and 2003 gave the commissioner the power to hold an oral hearing.
According to Justice Haughton, “neither the Directive nor the Acts, expressly or by implication, require or empower to conduct an oral hearing in relation to complaints made under the Acts”. Furthermore, “the requirements of natural and constitutional justice do not confer an inherent power on to conduct an oral hearing even in circumstances where there is a dispute of fact as to the existence or extent of an allegation of disclosure in contravention of the Acts”.
Justice Haughton also noted that “the Oireachtas had seen fit to promulgate very detailed provisions regarding the holding of oral hearings in other legislative frameworks”, such as in the Central Bank Act 1942, the Medical Practitioners Act 2007, and the Pharmacy Act 2007.
“These are all examples of the kind of legislative provisions that may reasonably be expected to feature in modern legislation if the Oireachtas intends that an administrative body is to have the power to hold effective oral hearings – and which are absent in the present case”.
Mr Martin could have appealed the Commissioner’s decision to the Circuit Court, joining the Credit Union as a notice party – Justice Haughton was satisfied that this should have been the remedy pursued by Mr Martin, and would have been a process affording him an oral hearing.
Dismissing the judicial review proceedings, Justice Haughton said Mr Martin’s claims for reliefs were rendered moot by the issuance of a formal statutory decision by the Commissioner in February 2015. This decision had been made within jurisdiction, and Mr Martin was not entitled to an oral hearing.