Supporting Documents:

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

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 the entire decision of the Court of Appeal delivered ex tempore on the 24th of April, 2015, dismissing an appeal from the decision of the High Court (Birmingham J., 14th of March 2012) and upholding a decision of the Circuit Court (Judge Linnane, 16th of November, 2010), which in turn upheld a determination of the Data Protection Commissioner of the 21st of July, 2010, that the applicant, Mr. Nowak, had not identified a breach of the Data Protection Acts.

2 The applicant was an unsuccessful candidate in an exam set by the Chartered Accountants Ireland (“CAI”) which was held on the 7th of October, 2009. Rather than pursue the appeal process provided for by the CAI, which involved an entitlement to view scripts, Mr. Nowak made an application to CAI to release personal data pursuant to the provisions of the Data Protection Acts 1988-2003, and in particular his exam script and data relating to his appeal. A considerable amount of data was released by CAI, but it refused to provide the examination script because it had been advised that the script was not within the scope of the Data Protection Acts.

3 The applicant complained to the Data Protection Commissioner who considered that CAI was correct that the exam script in this case was not personal data, and therefore concluded the complaint was bound to fail, and was frivolous and vexatious, and therefore would not be investigated. Mr. Nowak sought to appeal this decision. The Data Protection Commissioner responded that she considered that no appeal lay or was possible because there had been no investigation, and accordingly no decision pursuant to s.10 of the Data Protection Act 1988 (as amended). In the Circuit Court, Judge Linnane upheld the Commissioner’s view that no appeal lay, but in any event proceeded to consider the substantive issue and upheld the Data Protection 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 Act. The High Court, Birmingham J., adopted the same approach as the Circuit Court. The Court of Appeal in an ex tempore decision agreed with the reasoning of Birmingham J. All of the courts which considered the matter accepted that the determination of the Data Protection Commissioner was subject to judicial review but took the view that it did not come within the statutory appeal process. The applicant in person now seeks leave to appeal to this Court, and has filed a detailed notice of application, which has been responded to in some detail in a notice submitted on behalf of the Data Protection Commissioner.

4 The applicant contends that the question of whether or not an appeal lies from the Commissioner’s determination is an issue of public importance since it relates to the interpretation of important legislation affecting the public and a provision thereof which protects the public’s entitlement to appeal determinations of the Data Protection Commissioner. The applicant also contends that the substantive decision of the Data Protection Commissioner, upheld at each stage of the court process, is wrong. Finally, the applicant contends that the Court of Appeal judges “seemed to be biased and prejudiced”.

Determination

5 The applicant provides no basis for contending that the 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 to appeal may be granted. The applicant also contends, however, that the approach of the Data Protection Commissioner, as accepted by the Circuit Court, the High Court, and the Court of Appeal, that a determination that a matter was not personal data was not capable of being appealed under ss. 10 and 26 of the Act, was an incorrect interpretation of the Act. The applicant argues, first, that s.10(1)(b)(ii) obliges the Data Protection Commissioner to notify a complainant about a decision in relation to the complaint, including a decision not to investigate, and accordingly that such a decision must be a decision relating to the complaint and, therefore, is capable of being appealed. Second, he contends that the Act is required to be construed in a manner consistent with the State’s obligation under Directive 95/46/EC, which in turn, he contends, requires that there be an appeals process to the courts from decisions of supervisory authorities. The applicant also contends that the decision of the Data Protection Commissioner that this exam script was not personal data was wrong on the grounds that it contained his handwriting, his thought process, and that by connecting it to his exam number, he could be identified.

6 The Court accepts that there is an arguable ground of appeal in relation to the true interpretation of the Data Protection Acts 1988-2003. Moreover, the Court accepts that since it involves an issue of interpretation of important legislation having an impact on members of the public, and in particular the rights of members of the public to appeal determinations of the Data Protection Commissioner , that the point is therefore one of general public importance. The Court also considers that it is in the interests of justice that the Applicant be permitted to argue that the decision of the Court of Appeal upholding the substantive decision of the Data Protection Commissioner (and therefore of the Circuit and High Court) was wrong, since otherwise an appeal would be limited to the procedural issue.

Accordingly, the Court will grant leave to appeal to this Court on the following two grounds:

(1) The Court of Appeal erred in law in holding that the Appellant was not entitled to appeal to the Circuit Court from the determination of the Data Protection Commissioner under s.26 of the Data Protection Acts 1988-2003:

(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.