Shatter v. Data Protection Commissioner, 9 November 2017

• Judgment Date: 09 November 2017
• Neutral Citation: [2017] IEHC 670
• Case Outcome: Approved
• Docket Number: 2015 22 CA
• Year: 2017
• Issuer: High Court

[2017] IEHC 670

THE HIGH COURT

CIRCUIT APPEAL

[2014/003716]

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE DATA PROTECTION ACTS 1988 AND 2003

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

BETWEEN

ALAN SHATTER

APPELLANT

AND

DATA PROTECTION COMMISSIONER

RESPONDENT

AND

MICHAEL WALLACE T.D.

NOTICE PARTY

JUDGMENT of Mr. Justice Meenan delivered on the 9th day of November, 2017

Background

1. On 16th May, 2013, both t he appellant and the notice part y appeared on the RTE television programme “Prime Time”. Both were

interviewed conc erning controversy over t he penalty points s ystem. The not ice party c laimed that it was unlawful for members of An

Garda Síochána to exercise any discretion in relation to t he issuing of fixed charge notice s for cert ain road traffic of fences. The

appellant expressed the view t hat it was entirely appropriate for members of An Garda Síochána to exercise such a discretion and

state d:-

“Deputy Wallace himself was stopped w ith a mobile, on a mobile phone last May by members of An Garda Síochána and he

was advised by t he guard who stopped him that a fixed ticket c harge could issue and he c ould be given penalty points.

But the garda apparently, as I am advised…used his discretion and warned him not to do it again…”

2. Political co ntroversy followed.

3. On 21st May, 2013 the appellant said the following in Dáil Éireann: -

“I am grateful for the opportunity t o address issues arising from last T hursday’s Prime Time programme. I regret that

comments made by me have inadvertently resulted in c oncerns being expressed that I am prepared to use confidential

Garda information to damage a political opponent. Nothing could be f urther from the t ruth, but I am happy to of fer

reassurances t o deputies on this point. I give a solemn assurance to t he house that I am not in the business of receiving,

seeking or maintaining confidential, sensitive information from An Garda Síochána on members of this house, Seanad,

anyone in political life, nor are Gardai in the business of providing it…”

4. The appellant f urther stated:-

“The manner in which I acquired the information was quite straightforward and t here is nothing sinister about it. I have

taken the allegations made about t he integrity of t he fixed notice charge syst em and the cont roversy that arose with

great seriousness. In the circumstances, I asked that t he allegations made be fully investigated and was briefed on the

matter by the Garda Commissioner. During the course of one of our conve rsations in which a number of matters relating to

the reports on t he fixed notice charge issues were disc ussed, including circumstances in which Gardaí exercised their

discretion on traff ic offenc es, the incident involving Deputy Wallace was mentioned by the Garda Commissioner…”

5. In the meanwhile, the notice party submitted a c omplaint to t he respondent concerning what t he appellant had said on the “Prime

Time” programme. The respondent c ommenced an invest igation into the c omplaint and notified t he appellant of that fact by letter

dated 21st May, 2013. In the c ourse of this lett er, Mr. Tony Delany, Assistant Commissioner, on behalf of the respondent stat ed :-

“Sect ion 2 of the Data Protect ion Acts sets down the requirements whic h apply to t he processing of personal data by

data c ontrollers. The Commissioner is satisfied the personal data of Deputy Wallace was processe d by you in the inc ident

complained of. This investigation will seek to det ermine whether that data processing was c arried out in compliance with

the requirements of s. 2 of t he Data Protec tion Acts…”

I will return to this paragraph later in the judgment in the cont ext of dealing with one of the issues of the appeal.

6. Under s. 10.1(b)(ii) of the Data Prot ection Ac ts 1988-2003 (the “Act s”) the respondent may attempt to arrange an “amicable

resolution” of the c omplaint. However, suc h a resolution was not achieved and s o by lett er dated 20th Dece mber, 2013, on behalf of

the respondent, t he appellant was informed under s. 10 of the Ac ts that the respondent was going to ca rry out an investigation as to

whether or not t he Act s had been breached in the manner complained of. T he letter also pos ed a number of questions for the

appellant to answer c oncerning, inter alia, t he circumstance s under which the appellant a cquired the information upon which he based

his comments on t he RTE programme.

7. By letter of 17th February, 2014, the respondent s ought answers to the questions se t out in the lette r of 20th December, 2013. In