State could face legal action over public services card controversy

Data Protection Commissioner’s report found documentation retention unlawful

The State could face costly legal action arising from the public services card (PSC) controversy, with civil society groups saying they are considering class-action style cases.

The Data Protection Commissioner, in a damning report sent to the Department of Social Protection this week, found the retention of documentation on millions of citizens was unlawful, as was the basis for the card to be demanded for access to a range of public services.

Digital Rights Ireland chairman TJ McIntyre told The Irish Times the group was considering a civil multiparty action arising from alleged violations of the General Data Protection Regulation (GDPR) in how the scheme was run.

“It’s fair to say we are considering it,” said Mr McIntyre, who is an associate professor in the UCD school of law and whose group has long-opposed the card. “You could certainly have a case where you had people into the hundreds, or conceivably into the thousands, who were particularly aggrieved by it. Someone forced to get a PSC in relation to a driving licence, or a passport, and they stated their opposition at the time and this was ignored, they certainly would be in a claim like that,” he said.



Simon McGarr, a solicitor and data protection expert, said sections of the GDPR made a legal case easier as there was a recourse to compensation for non-material loss, a lower legal hurdle to clear than traditionally would be the case in a civil case. He claimed it was “the largest contingent risk the State has ever faced”.

He said every public body that insisted on the card could be liable. “The liability is triggered by the fact they allowed data to be processed on their watch,” he said.

Rossa McMahon, a solicitor with legal firm PG McMahon, said there was also a possibility of fines being handed down. “The scale of what DEASP [Department of Social Protection] holds and what they have done with the PSC certainly raises the prospect of significant fines in time. The wilfulness of other State agencies insisting on PSCs for transactions when they were totally unnecessary and had no legal basis is possibly an area of greater exposure for the State.”

However the commissioner said there was no possibility of fines arising from its completed investigation as it was conducted under pre-GDPR legislation. However the Department of Social Protection said if another investigation was to be initiated based on the findings of the latest inquiry, fines could then be levied.

Political fallout from the controversy gathered momentum on Friday, with the chairman of the Public Accounts Committee saying he would call the Department of Social Protection and the Department of Public Expenditure and Reform before the committee next month.

‘Pathetic excuses’

Fianna Fáil TD Seán Fleming said he believed the card was an attempt to introduce a national ID card, and that the department had offered "pathetic excuses" for the measure, while trying to expand it "dishonestly and through the back door".

Speaking to reporters on Friday, Minister for Social Protection Regina Doherty said: "We only received the report yesterday. It's a very comprehensive report. We are going to consider the report and issue a full response as soon as we can."

Jack Horgan-Jones

Jack Horgan-Jones

Jack Horgan-Jones is a Political Correspondent with The Irish Times