Nowak v Data Protection Commissioner

JurisdictionIreland
JudgeO'Donnell J,Mr. Justice Clarke
Judgment Date28 April 2016
Neutral Citation[2016] IESC 18
CourtSupreme Court
Docket Number[Appeal No: 2015/017],[S.C. No. 17 of 2015]
Date28 April 2016

IN THE MATTER OF THE DATA PROTECTION ACTS 1988 AND 2003

AND IN THE MATTER OF AN APPEAL PURPORTEDLY PURSUANT TO SECTION 26 OF THE DATA PROTECTION ACTS, 1988 AND 2003

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

Between/
Peter Nowak
Appellant
and
The Data Protection Commissioner
Respondent

[2016] IESC 18

O'Donnell Donal J.

Clarke J.

[Appeal No: 2015/017]

The Supreme Court

Data protection ? Personal data ? Frivolous complaints ? Appellant seeking all personal data held by the Institute of Chartered Accountants in Ireland ? Whether an examination script was personal data

Facts: The appellant, Mr Nowak, was a trainee accountant who failed the Strategic Finance and Management Accounting examination in the summer and autumn sessions of 2008 and 2009. On the 12th May, 2010, he submitted a data access request under s. 4 of the Data Protection Acts 1988 and 2003 seeking all ?personal data? held by the Institute of Chartered Accountants in Ireland (CAI). That body declined to release his examination script on the basis that the CAI had been advised that the script was not personal data within the meaning of the Acts. Mr Nowak sought the assistance of the respondent, the Data Protection Commissioner, disputing the contention that his script was not personal data. On the 28th June, 2010, the respondent advised Mr Nowak that exam scripts do not generally constitute personal data. The respondent took the view that as the complaint was not sustainable on legal grounds it was both frivolous and vexatious, and the respondent was not obliged to further investigate it. Mr Nowak commenced an appeal to the Circuit Court under s. 26 of the Acts against the decision of the Commissioner. Applying the test in Orange Communications Ltd v The Director of Telecommunications Regulation and anor (No. 2)?[2000] 4 IR 159, the Circuit Court judge upheld the determination of the Commissioner that the examination script was not personal data within the meaning of the Acts. Mr Nowak appealed the decision of the Circuit Court. The High Court upheld the decision of the Circuit Court judge on all points. The High Court judge agreed that a determination that a complaint was frivolous or vexatious could not be the subject matter of an appeal under s. 26, but went on to consider the case on the basis that such an appeal lay, and also upheld the decision of the Commissioner. The decision of the High Court was appealed by Mr Nowak, and the Court of Appeal delivered a short?ex tempore?judgment on the 24th April, 2015, in which that Court upheld the decision of the High Court on all points. By a determination of the Supreme Court issued on the 22nd October, 2015, leave to appeal was granted on two grounds which were certified to be of general public importance. In the determination, the grounds of appeal were reformulated as follows: (1) The Court of Appeal erred in law in holding the appellant was not entitled to appeal to the Circuit Court from the determination of the Data Protection Commissioner under s. 26 of the Acts; (2) The Court of Appeal erred in law in holding that the Data Protection Commissioner was entitled to conclude that the examination script, the subject matter of the complaint, was not personal data within the meaning of the Acts.

Held by O?Donnell J that, having considered the two grounds of appeal, they could be analysed as containing three issues: (i) Whether an appeal lies under s. 26 from a determination of the Data Protection Commissioner that a complaint is frivolous or vexatious; (ii) If so, what test should the Circuit Court have applied on an appeal under s. 26; (iii) If an appeal lies, then applying the appropriate test, was the decision of the Data Protection Commissioner that the exam script was not personal data within the meaning of the Acts justified? O?Donnell J was not satisfied that the issues could be said to be?acte clair.

O?Donnell J held that the Supreme Court should refer the questions to the European Court of Justice (ECJ). Accordingly, the questions proposed by the Court were circulated, and the parties were given the opportunity of commenting on them prior to their submission to the ECJ.

Appeal referred to the Court of Justice of the European Union.

Judgment of O'Donnell J delivered on 28th day of April 2016
1

Mr Peter Nowak's difficulties with the examination in Strategic Finance and Management Accounting (?SFMA?), set by the Institute of Chartered Accountants in Ireland (?CAI?), has led him on a legal journey, perhaps unique, through four different levels of the courts system in Ireland.

2

Mr Nowak was a trainee accountant who had sat and passed the first level accountancy exams set by the CAI, and three of the four required subjects at second level. However, he failed the SFMA examination in the summer and autumn sessions of 2008, and again in summer of 2009. When he failed once more in autumn 2009, he took steps to challenge the result. On the 12th of May, 2010, however, he changed tack and submitted a data access request under s.4 of the Data Protection Acts 1988 and 2003 (?the Acts?) seeking all ?personal data? held by the CAI. That body promptly released 17 items to Mr Nowak by letter of the 1st of June, 2010, but declined to release his examination script on the basis that the CAI had been advised that the script was not personal data within the meaning of the Acts. This was the essential issue which was to occupy the attention of the Data Protection Commissioner (?the Commissioner?) and four separate courts. Because the CAI took the position it did, the script itself was not disclosed, and accordingly neither the Commissioner nor the courts which have reviewed the Commissioner's decision have seen it. It is said, however, that the examination was an open book exam, and Mr Nowak contends that the script was in his handwriting and it may have contained markings and/or comments by the examiner.

3

Mr Nowak sent an initial email to the Office of the Data Protection Commissioner seeking its assistance and disputing the contention that his script was not personal data. He also raised a number of other concerns about the information which had been disclosed. These matters, however, are not relevant to the legal issue which has arisen, and I mention them only as background. By an email of the 28th of June, 2010, the Office of the Data Protection Commissioner offered some observations, and advised Mr Nowak that ?exam scripts do not generally fall to be considered ? because this material would not generally constitute personal data?.

4

There was further correspondence relating to the information that had been disclosed, and on the 1st of July, 2010, Mr Nowak submitted a formal complaint form enclosing some of the material supplied to him. There was further correspondence, but on the 21st of July, 2010, the Office of the Data Protection Commissioner wrote to him informing him that having reviewed the information, the Commissioner had identified no substantive contravention of the Acts. That letter, in its material respects, stated the following:

?In relation to your complaint of 1 July 2010, I must inform you that the Commissioner has examined all papers on this matter and has not identified any substantive breach of the Data Protection Acts. In accordance with Section 10(1)(b)(i) of the Data Protection Acts, we are not obliged to investigate a complaint where no substantive breach of the Acts remains to be investigated?

? We have now examined fully the material that you have supplied and cannot agree that the material to which you are seeking access can be considered to be your personal data within the meaning of the Data Protection Acts as transposed from the EU Directive on data protection. ?

?. In relation to your complaint of 14 July 2010, I must inform you that the Commissioner has examined all papers on this matter and has not identified any matter arising for investigation under the Data Protection Acts. The material over which you are seeking to exercise a right of correction is not personal data to which Section 6 of the Data Protection Acts applies. In accordance with Section 10(1)(b)(i) of the Data Protection Acts, we are not obliged to investigate a complaint where no breach of the Acts can be identified.?

5

It should be explained that s.10(1)(b)(i) of the Acts requires the Commissioner to investigate a complaint ?unless he is of opinion that it is frivolous or vexatious?. For reasons which it will be necessary to address in greater detail, the Office of the Data Protection Commissioner took the view that if a complaint was not sustainable on legal grounds then it was, in a technical sense, both frivolous and vexatious, and that the office was not obliged to further investigate it. That indeed is what occurred here, and that process has given rise to the legal issues which this Court must address.

6

In response to this communication, Mr Nowak commenced an appeal to the Circuit Court under s.26 of the Acts, which provides:

?(1) An appeal may be made to and heard and determined by the Court against?

(a) a requirement specified in an enforcement notice or an information notice,

(b) a prohibition specified in a prohibition notice,

(c) a refusal by the Commissioner under section 17 of this Act, notified by him under that section, and

(d) a decision of the Commissioner in relation to a complaint under section 10 (1) (a) of this Act,

And such an appeal shall be brought within 21 days from the service on the person concerned of the relevant notice or, as the case may be, the receipt by such person of the notification of the relevant refusal or decision.?

The Court, for the purposes of the Acts, is the Circuit Court, and the relevant...

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