Dublin Bus appeals order to release footage of accident


DUBLIN BUS has appealed a decision of the Data Protection Commissioner requiring it to release to a woman a copy of CCTV footage of an accident in which she allegedly fell while a passenger in a bus.

The company, which is being sued by the woman, claims the footage is legally privileged. Only the High Court can decide whether something is legally privileged, it contends. The commissioner, Billy Hawkes, argued there was insufficient evidence before him to show that the dominant purpose for which the footage was created was litigation.

The case was before the High Court yesterday by way of an appeal against a Circuit Court order affirming an enforcement notice issued by the commissioner requiring Dublin Bus to release the footage, recorded by on-board cameras. Mr Justice John Hedigan reserved judgment yesterday on whether the Circuit Court judge erred in finding in favour of the commissioner.

It was claimed that Margaret McGarr, Surrey, England, boarded a bus on October 3rd, 2008, and was climbing the stairs when, having almost reached the top step, she was caused to fall backwards and landed on the floor of the lower deck.

Gerard O’Herlihy, for Dublin Bus, said Ms McGarr had about a year later lodged an application with the Personal Injuries Board, as required before taking legal action. Dublin Bus then allowed her solicitor to view the recording, after which the solicitor sought access to the footage, in accordance with the Data Protection Act, Mr O’Herlihy said.

Ms McGarr initiated High Court proceedings and in January 2011, Dublin Bus received an enforcement notice from the commissioner requiring the footage be released. It claimed legal privilege over it on grounds it was now part of its defence, Mr O’Herlihy said.

Once legal proceedings were issued, the matter was sub judice and it was the High Court, not the commissioner, who had jurisdiction over the issue, he said.

Paul Anthony McDermott, for the commissioner, said the key element of legal privilege was confidentiality. In this case, the footage was not confidential because it had already been viewed by Ms McGarr’s solicitor.