Two recent High Court cases have found that where the Data Protection Commissioner (“DPC”) declines to investigate a complaint on the grounds that it is frivolous and vexatious, that decision to decline to investigate is not subject to appeal to the Circuit Court.

In Nowak v. Data Protection Commissioner (2012) IEHC 449

Mr. Nowak (the “appellant”) was a student with Chartered Accountant’s Ireland (“CAI”). He sat the CAI exams but failed. He subsequently submitted a data subject access request which included a request for a copy of his exam script.

CAI provided him with a large volume of material but did not include his exam script as they had been legally advised that the Data Protection Acts (“DPA”) did not extend to that material. The appellant submitted a complaint to the DPC who informed him that[1] he was not obliged to investigate a complaint where no ‘substantive breach’ of the Act remains to be investigated.

In the Circuit Court it was determined that the Court did not have jurisdiction[2] to hear an appeal where the DPC[3], had declined to investigate the appellant’s complaint on the grounds that it was “frivolous or vexatious”.

The Circuit Court decision was appealed to the High Court.[4]

While the Appellant did not point to any specific infringement of the law, the following points of law were said to arise on the hearing of the appeal to the High Court:

  1. Was the Circuit Court correct to conclude that it had no jurisdiction to hear an appeal where the DPC had not investigated the merits of the complaint on the grounds that it was “frivolous or vexatious”;
  2. If such jurisdiction had existed, should it have been determined that the DPC was correct in concluding that the examination scripts did not constitute “personal data”; and
  3. Should the Circuit Court have concluded that the complaint advanced by Mr Nowak to the DPC was one that was frivolous and vexatious?

Birmingham J in the High Court interpreted section 10 (1) of the DPA, and agreeing with Linnane J, to have the following sequence of events:

  1. The DPC has to decide whether the matter submitted to him is frivolous or vexatious;
  2. If the matter is not frivolous or vexatious, the DPC considers the matter and reaches a decision which may be appealed; and
  3. If the DPC views the matter as frivolous and vexatious, then he does not investigate the complaint and no appeal lies.

Therefore the jurisdiction to hear an appeal against the DPC only existed where an investigation had already been carried out. Birmingham J continued to examine the substantive issue even though he was of the opinion that no right of appeal lay in this case. He stated that there would need to be a serious error made by the DPC in reaching his decision. He also found that the accountancy exam in question would provide very little personal information about the appellant. He also referred to the fact that, in this jurisdiction, there has been no decision which deems an examination script “personal data” as defined in the DPA.

Birmingham J had regard to the view formed by the DPC that examination scripts did not constitute personal data and that he was therefore entitled to conclude that the information would not fall within the DPA. Due to this, it was reasonable to conclude that the complaint was hopeless. Therefore, under section 10(1) of the DPA, the complaint fell into the “frivolous” category, the DPC was not obliged to investigate the complaint, and no appeal lay under the DPA.

Fox v. The Office of the Data Protection Commissioner (2013) IEHC 49

In this case, David Fox (the “appellant”) appealed a decision of the Circuit Court. Here, the appellant had made two complaints to the DPC which were considered by the DPC[5] to be ‘frivolous or vexatious’. Accordingly a letter was written to the applicant by the DPC to inform him that they would not enter into any further correspondence on the issues.

Justice Peart in the High Court considered Section 10(1) of the DPA which provides that:

“(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 the 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 the 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 DPA which makes provision for an appeal against a decision of the DPA. When Mr. Fox received the Commissioner’s letter he appealed to the Circuit Court. However, the appeal was dismissed by her Honour Judge Linnane following a preliminary issue on the question of jurisdiction to hear an appeal at all. The judge held that the decision of the Commissioner was not one in which an appeal lay. If the Commissioner deems a complaint to be ‘frivolous and vexatious’ he is not required to investigate the complaint at all. Where the Commissioner does investigate a complaint, that

he does not consider to be frivolous and 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 they may, if aggrieved by the decision appeal under section 26.

On appeal to the High Court, Mr. Justice Peart referred to the decision in Nowak v Data Protection Commissioner which reached the same conclusion as outlined above. Thus the High Court dismissed the appeal and affirmed the order of the Circuit Court.