Nowak v. Data Protection Commissioner - 22 October 2015

• Judgment Date: 22 October 2015
• Issuer: Supreme Court
• Year: 2015

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE DATA PROTECTION ACTS 1988 AND 2003

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

BETWEEN

PETER NOWAK

APPLICANT

AND

THE DATA PROTECTION COMMISSIONER

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to Mr. Nowak to appeal to this Court from the order of the Court of Appeal delivered on the

24th April, 2015.

REASONS GIVEN:

1 The applicant , a litigant in person, seeks leave to appeal t he entire dec ision of the Court of Appeal delivered ex tempore on the

24th of April, 2015, dismissing an appeal from the dec ision of the High Court (Birmingham J., 14th of March 2012) and upholding a

decision of t he Circuit Court (Judge Linnane, 16th of November, 2010), which in turn upheld a determination of the Data Prot ect ion

Commissioner of the 21st of July, 2010, that the applicant, Mr. Nowak, had not identified a breach of the Data P rotect ion Acts .

2 The applicant was an unsuc cess ful candidate in an exam set by the Chartered Ac countants Ireland (“CAI”) which was held on t he

7th of Oc tober, 2009. Rather than pursue the appeal process provided for by the CAI, whic h involved an entitlement to view scripts,

Mr. Nowak made an application t o CAI to release personal data pursuant to the provisions of t he Data Protec tion Acts 1988-2003,

and in particular his exam script and dat a relating to his appeal. A considerable amount of data w as released by CAI, but it refused t o

provide the examination script bec ause it had been advised that the script was not within the scope of the Data Protec tion Ac ts.

3 The applicant complained to the Data Protect ion Commissioner who considered that CAI was c orrect t hat t he exam script in this

case was not personal data, and t herefore conc luded the c omplaint was bound to fail, and was frivolous and vexatious, a nd therefore

would not be investigat ed. Mr. Nowak sought t o appeal this dec ision. The Data Prote ct ion Commissioner responded that she

considered that no appeal lay or was pos sible because t here had been no investigat ion, and acc ordingly no decision pursuant to s.10

of the Data Protec tion Ac t 1988 (as amended). In the Circuit Court, Judge Linnane upheld the Commissioner’s view that no appeal lay,

but in any event proceeded t o consider the substantive issue and upheld the Data Prot ect ion Commissioner’s decision on that issue.

Mr. Nowak appealed this decision on a point of law to the High Court pursuant to s .26(3)(b) of the 1988 Ac t. T he High Court,

Birmingham J., adopte d the same approach as the Circuit Court. The Court of Appeal in an ex tem pore dec ision agreed with the

reasoning of Birmingham J. All of the courts which c onsidered the matter ac cept ed that the det ermination of the Data Protec tion

Commissioner was subject to judicial review but took the v iew that it did not c ome within the stat utory appeal proces s. The applicant

in person now seeks leave t o appeal to t his Court, and has filed a det ailed notice of application, which has been responded to in some

detail in a notice submitted on behalf of t he Data Protec tion Commissioner.

4 The applicant cont ends that the quest ion of whether or not an appeal lies from the Commissioner’s determination is an issue of

public importance sinc e it relates to t he interpretation of important legislation affec ting the public and a provision thereof which

protect s the public’s entitlement to appeal det erminations of the Data Protec tion Commissioner. The applicant also c ontends that the

substantive dec ision of the Data Protec tion Commissioner, upheld at eac h stage of t he court process, is w rong. Finally, the applicant

contends that the Court of Appeal judges “seemed to be biased and prejudiced”.

Determination

5 The applicant provides no basis for c ontending that t he judges in the Court of Appeal appeared biased or prejudiced and therefore

this ground lacks all substance and cannot be a ground upon which leave t o appeal may be granted. T he applicant also c ontends,

however, that the approach of t he Data Protec tion Commissioner, as acc epted by t he Circuit Court, t he High Court, and the Court of

Appeal, that a determination that a matt er was not personal data was not c apable of being appealed under ss. 10 and 26 of t he Act,

was an incorrec t interpretat ion of the Ac t. The applicant argues, first, t hat s.10(1)(b)(ii) obliges the Data Prote ction Commissioner to

notify a c omplainant about a decision in relation to t he complaint, including a decision not to investigate, and acc ordingly that such a

decision must be a dec ision relating to the c omplaint and, therefore, is capable of being appealed. Second, he cont ends that the Ac t

is required to be const rued in a manner consiste nt with t he Stat e’s obligation under Directive 95/46/EC, which in turn, he c ontends,

requires that there be an appeals process to t he courts from decisions of supervisory authorities. The applicant also c ontends that

the dec ision of the Data Protec tion Commissioner that this exam script was not personal data was wrong on the grounds that it

contained his handwriting, his thought proc ess, and t hat by c onnecting it to his exam number, he could be identified.

6 The Court ac cepts t hat there is an arguable ground of appeal in relation to the t rue interpretation of t he Data Protec tion Acts

1988-2003. Moreover, the Court ac cepts that since it involves an issue of interpretat ion of important legislation having an impact on

members of the public, and in particular the rights of members of the public to appeal det erminations of the Data Protec tion

Commissioner , that the point is t herefore one of general public importance. T he Court also c onsiders that it is in the interests of

justice t hat t he Applicant be pe rmitted t o argue that the dec ision of the Court of Appeal upholding the substantive decision of t he

Data Protec tion Commissioner (and therefore of the Circuit and High Court) was wrong, since ot herwise an appeal would be limited to

the procedural issue.