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THE CIRCUIT COURT RECORD NO: 2014003716 DUBLIN CIRCUIT COUNTY OF TIE CITY OF DUBLIN UN TLE MATTER OF THE DATA PROTECTION ACIS 1988 & 2003 AND IN THE MATTER OF AN APPEAL UNDER SECTION 26 OF THE DATA PROTECTION ACTS, 1988 & 2003, BETWEEN ALAN SHATTER APPELLANT AND THE DATA PROTECTION COMMISSIONER RESPONDENT AND ‘MICAEL WALLACE, TD NOTICE PARTY IUDGMENT delivered this the 21" day of January 2013, by Her Tonour Judge Jacqueline Linnane This anatter comes before the court by way af an appeal by Mr. Shatlor under Section 26(1) of the Dara Protection Acts against a decision made on 6" May, 2014 hy the Data Proteetion Commissioner as a result of an investigation of a complaint dated 20" May, 2013 by Mr. ichael Wallace under Scetion LO(T)(a) of the Data Protection Acts 1988 & 2003 Basically Mr. Wallace's complaint related to the alleged disclosure of bis persamal daa by Me, Shatter when he was Minister for Justice & quality ‘on RTF’s Prime Time programme on 16" May, 2013 during a debate on the penalty points controversy. Il was alleged by Mr, Shatter that Mtr. Wallace was stopped and cautioned for use ofa mobile phone while driving the previous May and Mr, Wallace claimed tht improperly obtained personal data conceming him was disclosed by Mr, Shatter and he asked the Duta Protection Commissioner to investigate any possible breaches of the dats protection fegisletion, Mr. Shatter was informed of the complaint and in the first insuimce the Data Protection Commissioner cxplored the option of an amicable solution being arrived at but Mt. ‘Wallace sought aa investigation and formal decision on his complaint by the Data Protection Commiasioner, The Data Protcction Commissioner then proceeded to investigate the complaint and wrote to Mr, Shatter for information so that his decision would take into account all relevant factors, It was not disputed that Mr. Shatter suid what he did on the programme, It seems thar the Cordat had a uote in writing regarding the incident involving Mr Wallace, the Data Protection Commissioner saw the note during the course of his investigation, and the informetion was conveyed verbally by the then Garda Commissionar Lo Mr. Shatter in his capacity as Minister. (ho Data Protection Coromissioner formed the view that the information in question was personal data passed to Mr. Shatter as Minister bat it was covered by Section 41 (d) of the Ciarda Sioehdna Act, 2005 (which, sequires the Garda, Commissioner to keep the Minister fully informed of cnetters thal he focls should be brought to the Minister's attention) and. so there was no issue from a data Section 8 of the Data Protection Acts prowection perspective with the passing of thal personal data from the Garda Commissioner to Me, Shatter as Minister but the Minister was found by the Dara Protection Acts to comply with its requirements in his use of the personal data which he had obvained from the Garda Connnissioner. Scotion 2(A(1 Md) of the Act provides thal data nay be processed where the processing is necessary for the purposes of legitimate interests pursued by the data controller or by'a third party or parties to whom the: data are disclosed, except where the processiny unwarranted in any particular case by reason of prejudice to the fundamental tights and freedoms or leuithnate interests of the data subject, ‘The Data Protection Commissioner's decision records that Minister Sharter was invited to make submissions aad observations on various points raised by the Mats Protection Commissioner during the course of the investigation which he did in writing and at length amd indivated what mutiors he fell the Data Protection Commissioner should have regard to He was also asked to indicate to the Data Protection Conmissinner which of the specific conditions in Scetion 2(4(1) of the Act he relied upon, All of the intezaction benween the office of the Dats Proleetion ‘Commissioner and Mr. Shutter wats conducted by Mr. Shatter in his, ministerial capacity and on his off al rolepaper and the Data Protection Commissioner wrote to his in his capacity as Minister a his ministerial address. “The complaint made by Mr, Wallace was against. Minister Alan ‘Shatter and Mir Shatter appeared on the Prime Lime programine in his capacity as Minister for Justive & Equality, ‘Phe c was ub dispece that Mr, Shatter had received the information tom the Garda Commissioner inhis capacity as Minister ul the tine. The decision of the Rata Protection Commissioner was sent to and addressed to Mz. Alan Shatter, TD Minister for Justice & Equaliry athis then official address. ‘The following day Mr. Shatter resigned as Minister for Fustice. The Notive of Appeal is deted 22" May, 2014 and has been brought hy Mr. Shatter ia. his personal capacity During the couese af the investigation Minister Shatter, as he then was and throughout the period of this investigation andl at the fime of the decision, disputed that his use of the information given to him by the Garda Commissioner was the processing of persoual data subject to the Datu Protections Acts, but even if it was it would be justifiable under the provisions of Svetion 2A(1}{d) in fast disclosing the infoomation was ia Lhe public interest in pursuit al his Segitinate interest and in fubfibent of nis umetion as Minister and as a public representative, He ulsw disputed that the disclosure of this Information qualified us the processing of personal data under the terms of the Data Protection Acts in that the information on Mr. Wallace wax aot ia his possession ot that of his, Department in any documentary form- it had been conveyed to him verbally as Minisler by the Garda Commissioner and no written record was madle of it by him or his Deparitvents il resided or was held in his sniind, A draft of the Data Protection Commissioner's decision was sent to bath the complainant smd Minister Shatter to alford them inter alia an ‘opportunity to make any farther observations which they felt appropriate and to enswe the fucts outlined were aseurate and account Laken of all relevant factors, Minister Shatter made extensive comments in writing on ‘the draf decision which the Data Protectioa Commissioner considered and same changes were nade (o the deaft decision. Having taken into aecount relevant definitions in the Dats Protection Acts the decision of the Data Protection Commissioner fonad thal the Minster was a dat controller in relation to personal dats processed by him (in his ministerial capacily) and by his department and the samme applied to the Garda Commissioner vegarding personal data processed by Au Garda Siochénz. ‘the decision explains how the Dale Protection Commissioner concluled the Minister became a joint controller with the Garda Commissioner of the porsonel data of Deputy Watluce and therefore he could auly disclose it in accordance with the Data Protection Acts and the 4 cts applied to the disclosure 07 the information by the Minister The Data Protection Couunissioner rejected the argument by th: Minister that Section 2(A)(1\(d) applied as he was not savistied that the isecosure by the Minister wos necessary in pursu!l ofhis legitimate inicrests having rogaed to the rights of Deputy Wallace rogatding his, personal data and took che view that none af the other provisions in section 2(A) applica, Che decision was that Mr, Alan Shatter T.D. Minister for Justice & Fqcality contravened the Data Protection Acts, 1988 & 2003 Section 2(1 eit) by further processing Deputy Michael ‘Wallace's personal data it a manner incompatible with the purpose for which that personal data was obtained when he disclosed that personal data in the course of the debate when appearing on the RTE Prime Tine. television progranvne on 16% May, 2013 —numely hut Dupuly Wallace bnefited fiom discretion exercises hy 2 member af An Garda Siachana in relation to the uxe of a mobile phone while driving, Counse} for the Data Protection Commissioner, the respondent, ised a preliminary objection ta the standing of the apypellant to being this appeal by reason of the ther that the office of Minister for Justice & Equality isa separate legal persomulily from the appellant as aa individual citizen and go the appellant cannot appeal against a decision that relates to the of joe of Minister. It is argued that the decision of the respondent made on 6° May, 2014 was made agaitsst Mr. Shatter in his capaciry as Minister for Justice & Equality and not in his personal capacity as un individual citizen, Counsel makes the point that af all material times when the complaint wax made, the investigation conduered and the decision made, the appellant held the post of Minister but he resigned as Minister on 7” May, 2014 and the Notice of Appeal is dated 22" May, 2014 und is brought by the appellant as an individual. ‘The complaint made lo the Data Protection Commissioner hy Deputy Willuce on 20" May, 2013 was made against Minister Alan Shatter in relation to the Prime Time debale in which the appellant had taken part in his capacity ais Minister. Itis not disputed efther that the appellant received the infonnution about Deputy Wallace as Minister and all correspondenes during the investigation was sent to Mr. Shatter in his capavily as Minister and responded to thom his wsinisterial address, In ny view this objection regarding the stnding of the appellant Lo bring this eppeat is well founded and on this ground alone | would ‘ arguments from both the appellant and the respondent on the merits of the iss this appeal. However, as [ have also heurd submissions and appeal und Sr ease Tam ineurreet on the standing point, [have cousideeed those arguments Its well recogaised that the test to be applied in an appeal such as this is that set out in the case of CLSYER BANK v, MCCARREN, an imrenoried High Court decision af Finegan Pan 1" November. 20006: To succeed on this appeal the Plaintiff must establish as a mnetter of probability thar. sakiitg the adjudicative prowess as a whole, the devision reached was vitiated by @ serio and significant error or a series of such ermnrs, In applying the test the Court will have regard to the degree of expertise and specialist Inowledge uf the Defendant. the deferential standard is that applied by Keane Cd. it ORANGE ¥, THE DIRECTOR OF TELECOMMUNICATIONS REGULATION & ANOR and rot that in tite Stee (Reege) v. Stardust Compensation Tribune" The omus rests with the appellant here. In my view the Data Protection Comumissioner considered the matter fully and at length in the course of his investigation. He took inm secount the arguments put forward by Mr. Shatter. fir procedures wore followed and reasons given, for the conccusion and decision reached. Applying the test refecred to ahove, 1 do not consider that if bas been shown thal the decision made was viliatcd by any ctious or significant error or series of such errors. Accordingly even il the sumding of the appellant to bring this appeal had not been raised, A would dismiss this sppea