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Data Protection Circuit Court decisions

Data Protection Circuit Court decisions

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Published by TJ McIntyre
Courtesy of the DPC's office, this is a collection of judgments from the Irish Circuit Court on appeal from decisions of the Data Protection Commissioner. These include attendances and notes of judgment (where a written judgment wasn't handed down) as well as orders relating to these decisions. It covers the period 2008-2012 - while it should be reasonably comprehensive it isn't guaranteed to include all judgments from that timeframe.
Courtesy of the DPC's office, this is a collection of judgments from the Irish Circuit Court on appeal from decisions of the Data Protection Commissioner. These include attendances and notes of judgment (where a written judgment wasn't handed down) as well as orders relating to these decisions. It covers the period 2008-2012 - while it should be reasonably comprehensive it isn't guaranteed to include all judgments from that timeframe.

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Published by: TJ McIntyre on Oct 31, 2013
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10/31/2013

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Filed 
 By:
GIBSON
 &
ASSOCIATESSOLICITORS38 ARRAN QUAY
DUBLIN 7
Record No: 2011/02390
AN CHUIRT
 CHUARDA
(fHE CIRCUIT
 COURT)DUBLIN CIRCUITCOUNTY
 OF
 THE CITY OF DUBLIN
BEFORE JUDGE LINNANE
tli
THE 4 DAYOF May 2011
IN THE MATTER OF SECTION 26 OF THE DATA PROTECTION ACTS 1988 TO
2003
BETWEEN
-AND-
The Office of the Data Protection CommissioneAPPLICANT
RESPONDENT
The Respondent having been duly served with the Notice of Motion on behalf of theApplicant dated the 10th
 day
 of March 2011 herein appealing the decision of the
Respondent dated the 15th February 2011 WHEREUPON and on reading the
documents f'LIedand on hearing Counsel
 for 
 the
 Applicant
 and Counsel
 for 
 the
RespondentTHE COURT DOTH ORDER that the Applicant's Appeal be and the same is hereby
dismissed.
THE COURT DOTH ORDER that the Respondent
 do
 recover costs of the Application
from the Applicant, such costs to be taxed in default of agreement.THE COURT DOTH FURTHER ORDER that execution for costs hereon be stayed foa period of ten
 days.
 In the event of an Appeal to the High
 Court:,
 such stay to continue pending determination of the appeal should same be lodged, the stay being granted onthe basis that the appeal is prosecuted without delay.BY THE COURT
Order 
 settled 
 by
 RENA QUINN
Draft Order settled on 04/0512011
 
-
Court Attendance
Client:
Date:
Case:Matter:Court:
Data Protection Commissioner (DAT001/0044)Wednesday 4 May 2011(Civil Motions List began
 @
 10.00 am and hearing commenced at
12.05pm)
~ v - Data Protection Commissione
(Circuit Court Record No. 2011/02390)Trial of preliminary issue on Jurisdiction of the Court to hear StatutoryAppeal pursuant to Section 26 of the Data Protection Acts 1988 an
2003
Circuit Court No. 22 before Judge Jacqueline Linnane (Civil MotionsList)
Attendees:
Protection Commissioner),Solicitors for the Appellant)(Office of the Data(Gibson
 &
 Associates,
Counsel:
 Paul Anthony McDermott BL for the Data Protection Commissioner and Andrew Fergus BL for the Appellant
Decision of the Court
Judge Linnane gave judgment in the following terms:
"It was agreed betweeJ1the parties that the preliminary issue be decided first as to whether the Court had  jurisdiction to entertain this appeal. It is quite ciear, in my vieJP,from Section 10(1 )(b)(ii) and Section
 26(1
)(d) of the Act that it is onl
 aJ
a result of an investigation of a complaint and where the CommisJioner makes the decision thereto that an appeal lies under Section
 26
 to the Circuit Court. If there is no investigation because theCommis.rioner is
 0 / 
 the opinion that the mmplaint is friJ)o!ous or IJexatious, which the Commissioner 
 iJ
entitled to do under Section 10(1)(b)(i), there is no rigbt 
 0 / 
 appeal to this Court aJ"no decision has beenmade jo!!02!Jingan itwestigatiotl. That is
 1 1 £ J I
 ruling. " 
Having heard further submissions from the parties, Judge Linnane then made an ordefor costs in favour of the Commissioner, costs to be taxed in default of agreement. (Inthe event of an appeal; theJudge directed a stay on executing the costs order).
D."'.'l'OOl-0044-865527 -1
 
THE PARTIES~SUBMISSIONSFirst Calling
Wben the case was frrst called in the Civil Motions List, Judge Linnane commented thatit should have been put into the Civil Hearings List and she wasn't sure why it had been put into her Motions list.Judge Linnance said that she had not seen any papers connected with this appeal yet.Counsel for the Data Protection Commissioner ("DPC") informed the Court thatsubmissions had already been exchanged and lodged with the Circuit Court offrce for thiscase. Judge Linnane said that she would not deal with it in the current Motions List butshe would see if she could take it in the Hearings List later on when she knew what had  been sent over from the President's list.Both parties indicated to the Court that the matter would take around 20 minutes to hea but Judge Linnane commented that it sounded likeit would take longer than that.
Hearing
(aJ Submissions/or the Respondent 
Counsel for the DPC agreed that it was appropriate that he should put his arguments tothe Court first as the issue currendy before the Court had been raised by the respondent.Counsel for the DPC explained to the Court that there was a preliminary issue relating tothe jurisdiction of the Court to hear this appeal and in circumstances where the Courthad ah'eady made a similar decision on jurisdiction (in the Nowak case) it seemed  prudent to have the preliminary issue determined separate to any full hearing of thematter. Counsel noted that if the DPC was successful on this point it would end theappeal and if not the appeal could then be dealt with on its merits.Counsel for the DPC then took the Court through Section 10 of the Data ProtectionActs 1988 and 2003 (the "DP A") regarding the powers of the DPC to investigate and the procedure to be followed under Section 10(1)(b) of the DPA when a complaint isreceived.Counsel for the DPC explained the background to this matter i.e. that the appellant was asecurity guard at the National GallelY of Ireland, that he had made various complaintsconcerning his employers and that he appeared to be in dispute with them. Counselnoted the Court would see from the DPA that there is a mandatory obligation on theDPC to investigate a complaint unless the matter is considered to be frivolous ovexatious. Counsel submitted that in this regard the word "unless" in Section 10(1)(b)(i)of the DPA was important because it showed the DPC had discretion to look intosomething to see if it merited the tUneand resources of its offrce to spent on it.On the issue of "frivolous and vexatious", Counsel noted that the Court ",,':ill be familiar with that phrase and that lawyers in particular know that there are certain connotations
D AT001-0044-86 5527-1

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