Monday, November 26, 2012

High Court confirms standard of review in data protection appeals

The recent decision in Nowak v. Data Protection Commissioner will be essential reading for all data protection practitioners as in it the High Court finally confirms the test to be used in hearing appeals against decisions of the Data Protection Commissioner, along with providing some interesting observations regarding examination scripts as personal data and the meaning of "frivolous and vexatious" complaints to the DPC.

Under s.26 of the Data Protection Acts 1988 and 2003 there is a general right of appeal to the Circuit Court against decisions of the DPC - that section does not, however, specify the standard which the court should take in hearing appeals. In particular, it left open the question of whether an appeal should be treated as a full rehearing of the matter, an appeal on the merits, an appeal limited to a point of law, or some other approach falling short of a hearing de novo. In practice, the Circuit Court has generally followed the decision in Ulster Bank v. Financial Services Ombudsman which is deferential towards the decision maker and requires the appellant to show a serious and significant error in the decision. However, given the scarcity of written judgments at Circuit Court level and the lack of any High Court precedent the matter remained open until now.

In this case, Mr. Nowak was an unsuccessful student with Chartered Accountants Ireland (CAI) and sought access to information held by CAI including a copy of his examination script. While other information was provided to him, the examination script was withheld on the basis that it did not constitute personal data. Mr. Nowak complained to the DPC, who ultimately declined to investigate his complaint on the basis that the complaint was frivolous or vexatious.

Mr. Nowak then brought an appeal to the Circuit Court under s.26, where Judge Linnane held that the court had no jurisdiction to hear the appeal where the DPC had declined to investigate the complaint on this basis. On subsequent appeal the High Court (Birmingham J.) agreed, ruling that:

I find myself in respectful agreement with Judge Linnane that the jurisdiction of the Circuit Court is to hear an appeal against a decision that has been arrived at after there has been an investigation. I share her view that absent investigation of the complaint and a decision in relation to the investigation, that the Circuit Court has no jurisdiction. The entitlement of an aggrieved party in the first place to submit an appeal and then of the Court to hear and determine an appeal arises only where there has been a decision of the Commissioner in relation to a complaint under section 10(1)(a). However, the Commissioner reaches a decision in relation to a complaint only if, not having decided that the matter is frivolous and vexatious, he proceeds to investigate the complaint and reaches a decision in relation thereto.

More importantly, however, Birmingham J. nevertheless went on to consider the substantive issue raised by the appellant and held that:
15. Had an appeal been possible, it would then have been necessary to consider how a court should approach the hearing of an appeal from a body such as the Data Protection Commissioner. How a court should approach an appeal from a statutory body was addressed by Finnegan P. in the case of Ulster Bank v. Financial Services Ombudsman [2006] IEHC 323 (Unreported, High Court, Finnegan P., 1st November, 2006). In the course of his judgment he commented:

"To succeed on this appeal the Plaintiff 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. In applying the test the Court will have regard to the degree of expertise and specialist knowledge of the Defendant. The deferential standard is that applied by Keane C.J. in Orange v The Director of Telecommunications Regulation & Anor and not that in The State (Keegan) v Stardust Compensation Tribunal."...

17. I am satisfied that the approach identified by Finnegan P. is the one that would have been appropriate to apply had an appeal been available. In particular, it seems to me that it would have been appropriate for the court to have regard to what Finnegan P. referred to as the deferential standard, when deciding whether to substitute its own view for that of the Data Protection Commissioner on the issue of whether an examination script constituted personal data. The Data Protection Commissioner is concerned with issues involving data protection on a daily basis. He is required to be in regular contact with his colleagues in other EU member states and is likely to be fully au fait with developments internationally. Pointing to the expertise of the Data Protection Commissioner does not mean that a court will abdicate its responsibilities and there may be cases where decisions of the Commissioner will be set aside, but if that happens, the decision to set aside the decision of the Commissioner will have been taken by a court that is conscious of the experience and expertise of the Commissioner. [Emphasis added.]
Applying this standard, Birmingham J. went on to hold that examination scripts did not, per se, amount to personal data and that the DPC was entitled to find that the examination scripts in this case did not contain personal information. He also held that the DPC was entitled to find the complaint frivolous or vexatious on the basis that:
Th[e] section refers to complaints that are frivolous or vexatious. However, I do not understand these terms to be necessarily pejorative. Frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome...
The decision of the Circuit Court was therefore affirmed.

While the points raised regarding examination scripts and frivolous and vexatious complaints are significant in their own right, for me the most important part of the decision is its clear statement that the courts should be slow to set aside decisions of the DPC. The standard applied - that of a serious and significant error - sets the bar quite high for any challenges.

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