Data Protection Update

Circuit Court jurisdiction

Two recent High Court decisions make it clear that the Circuit Court does not have jurisdiction to hear an appeal against the Data Protection Commissioner's refusal to investigate a complaint. The jurisdiction of the Circuit Court in such matters is limited to appeals against a decision of the Commissioner taken after an investigation. The first of these High Court decisions is that of Birmingham J. in Nowak v the Data Protection Commissioner [2012] IEHC 449, delivered on 7 March, 2012.

Nowak concerned a personal access request to the Chartered Accountants of Ireland ("the CAI"), with which he was registered as a student, including a request to access a copy of his exam scripts. The CAI did provide certain data but refused access to the exam scripts.

Mr. Nowak made a complaint to the Commissioner. However, the Commissioner found no substantive breach of the DPA, as exam scripts do constitute "personal data" as defined in s. 2, and declined to investigate the complaint. Mr. Nowak appealed the Commissioner's "decision" not to investigate to the Circuit Court under s.26 of the DPA.

S. 10(1)(a) provides that the "Commissioner may investigate, or cause to be investigated, whether any of the provisions of [the Acts] have been, are being or are likely to be contravened in relation to an individual either where the individual complains to him of a contravention of any of those provisions or he is otherwise of the opinion that there may be such contravention."

S. 10(1)(b)(i) further provides that, where a complaint is made, the Commissioner shall investigate the complaint or cause it to be investigated, unless he is of the opinion that it is frivolous or vexatious.

Before the Circuit Court, the Commissioner submitted that he was not obliged to investigate the complaint where there was no substantive breach of the DPA.

The Circuit Court held that it did not have jurisdiction to hear the appeal where the Commissioner had declined to investigate Mr. Nowak's complaint. The Court concluded that the Commissioner had declined under s. 10(1) having formed the view that the complaint was frivolous or vexatious.

On appeal to it, on a point of law, the High Court held that the entitlement of the aggrieved party to appeal to the Circuit Court, and then of the Circuit Court to hear and determine an appeal, arises only where the Commissioner makes a decision under s. 10(1)(a).

The Court reasoned that the Commissioner makes such a...