Bus Atha Cliath/Dublin Bus -v- The Data Protections CommissionerNeutral Citation IEHC 339

High Court

Judgment delivered on August 8th, 2012 by Mr Justice Hedigan

Judgment

The existence of proceedings between a data requester and a data controller does not preclude the data requester making a successful access request under the Data Protection Act.

Background

The case came to High Court as an appeal by Dublin Bus against a decision of the Circuit Court, to which Dublin Bus had appealed a decision of the Data Protection Commissioner that a person who was suing Dublin Bus following an alleged fall was entitled to CCTV footage of the incident.

Margaret McGarr issued personal injury proceedings against Dublin Bus in October 2009, following an alleged fall in October 2008. She requested a copy of any information, including video records, held by the bus company, who rejected her request, stating that any such information was prepared in anticipation of potential litigation and was therefore privileged.

In January 2011 the Data Protection Commission issued an enforcement notice requiring Dublin Bus to provide the information. Dublin Bus appealed this decision to the Circuit Court, which upheld the decision of the commissioner in July 2011.

The company claimed that the Circuit Court judge, Judge Linnane, had erred in law in not finding that, following the commencement of proceedings, the High Court had sole competence to decide on all matters relating to the proceedings. It contended that the proper forum for obtaining this material was through Discovery, and any attempt to seek disclosure outside the High Court was usurping the court’s role. The commissioner should have advised Ms McGarr accordingly.

Counsel for Dublin Bus cited English case-law where it was stated that the purpose of the right of access to data was not to assist individuals in the conduct of litigation.

Counsel for the commissioner said there was a difference between the data protection law in England and Ireland, in that the English law conferred discretion on the court as to whether or not to grant access. Counsel also argued that, to successfully appeal against the Circuit Court decision, the appellant must establish as a matter of probability the decision was vitiated by a serious or significant error. No such error had been identified. A person’s fundamental right to access to personal data under the Act is not conditional on their establishing a good motive for wanting the data, and the commissioner was not required to ask them why they wanted it. If the legislators wished to impose limitations on the right of persons to their personal data, they would have done so.

There was nothing about making a data access request that subverted the jurisdiction of the courts. Indeed the courts expected parties to attempt to obtain documents by other means before resorting to Discovery. The right to personal data was a fundamental right and was now provided for expressly in the Lisbon Treaty. Any exemption to data protection law should be narrowly construed.

Decision

Mr Justice Hedigan said that no attempt had been made by the appellants to identify any points of law, which was necessary in order to mount a valid appeal. Nonetheless, he had indicated he would deal with the substantive issue. The only exceptions to the release of data provided for in the Act were where the supply of the data was not possible or would require disproportionate effort, and the data subject did not agree. The appellant had not sought to argue that either applied here.

The English case law relied upon by the appellant was not relevant, as these were cases where the requester was merely mentioned in documents that related to third parties, and under the English Act the court had discretion to refuse. This did not exist in the Irish law.

The appellant was seeking to carve out another exception to the Act, to the effect that whenever a data requester has instituted litigation against a data controller he or she was precluded from making a data access request. If the drafters of the legislation wished to place such a restriction on the right of access they would have done so expressly.

The appeal was dismissed.

The full judgment is on courts.ie