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Data Protection – High Court confirms no appeal on decision of “frivolous and vexatious”

In the recently published High Court case Fox v The Office of the Data Protection Commissioner on 6th February 2013 , an issue of statutory interpretation arose whereby two letters written by the applicant to the Data Protection Commissioner on 10th December 2010 and 19th January 2011 were deemed by the Commissioner to fall within Section 10(1)(b)(i) of the Data Protection Acts 1998 (as amended) (“the Acts”) i.e. they were considered to be “frivolous and vexatious”. The Data Protection Commissioner’s office subsequently wrote to the applicant to inform him of their decision.Justice Peart in the High Court looked at Section 10(1) of the Acts (as amended) which provides:“(1) (a) — The Commissioner may investigate, or cause to be investigated, whether any of the provisions of this Act 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 opinion that there may be such a contravention.(b) Where a complaint is made to the Commissioner under paragraph (a) of this subsection, the Commissioner shall –(i) investigate the complaint or cause it to be investigated, unless he is of opinion that it is frivolous or vexatious, and(ii) if he or she is unable to arrange, within a reasonable time, for the amicable resolution by the parties concerned of the matter the subject of the complaint, notify in writing the individual who made the complaint of his or her decision in relation to it and that the individual may, if aggrieved by the decision, appeal against it to the Court under Section 26 of this Act within 21 days from the receipt by him or her of the notification.”The Court also considered Section 26 of the Acts which makes provision for appeal against a decision of the Commissioner in relation to the complaint under Section 10(1)(a) to the Circuit Court and under that Section, the decision of the Circuit Court is final except on a point of law only to the High Court.Upon receipt of the Commissioner’s letter in this case, the applicant appealed to the Circuit Court what he considered to be a decision on his complaints, namely that they were frivolous or vexatious and therefore a decision in respect of which in his submission he had a right to appeal under Section 26 of the Acts.By order 4th May 2011, Judge Linnane in the Circuit Court dismissed the applicant’s appeal following a preliminary issue on the question of jurisdiction to hear an appeal at all. The learned judge determined that such a decision by the Commissioner was not one in respect of which an appeal lay, given the wording of the section.Justice Peart noted that Section 10(1) provides that a Commissioner may investigate a complaint and subsection (2) went on to require the Commissioner to investigate a complaint but only if he does not consider the complaint to be frivolous or vexatious. In the latter case, Justice Peart noted that he is not required to investigate the complaint at all. Where the Commissioner does investigate the complaint (where it is not deemed to be frivolous or vexatious) he must first try to have the matter resolved amicably and if unsuccessful in that regard, notify the complainant of the decision and inform the person that he/she may, if aggrieved by the decision appeal under Section 26. The High Court further noted“There is a clear sequencing evident in this section. The complaint does not get even to an attempt to resolve it amicably or a decision upon it until the Commissioner is satisfied that it is not a frivolous or vexatious complaint. The reference in Section 10 (1)(b)(ii) to “the decision” (as distinct from “a decision”), must in my view relate to the decision made following the investigation. It speaks of only one decision, and that in my view cannot include the opinion formed for the purpose of subsection (1)(b)(i) that the complaint is frivolous or vexatious. It follows in my view that the reference to “a decision” in section 26 of the Act must in turn be read as meaning a decision reached in relation to the complaint after it has been investigated”.Justice Peart also referred to the decision of Nowak v Data Protection Commisioner [2012] IEHC 449 which reached the same conclusion.The High Court dismissed the appeal and affirmed the order of the Circuit Court dated 4th May 2011.

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