Tuesday 19 November 2019

Former Justice Minister Shatter's appeal against decision he breached Data Protection Act dismissed

Alan Shatter
Alan Shatter

Ray Managh

The appeal by former Minister for Justice Alan Shatter against a decision of the Data Protection Commissioner, that he breached the Data Protection Act, has been dismissed in the Circuit Civil Court.

And immediately after the judgment was handed down this morning, independent TD Mick Wallace --- about whom the Minister disclosed information on RTE’s Prime Time – said it left the former Minister “very open.”

Mr Wallace said it was significant that the court had taken on board the fact that what the Minister did on the night on Prime Time was not in the public interest.

Judge Jacqueline Linnane said the Data Protection Commissioner found that the Minister had breached the act by disclosing information regarding members of the gardai using their discretion when he had been found using his mobile phone while driving.

The commissio0ner found that Mr Shatter had failed to uphold his statutory duties under the Data Protection Acts when he disclosed the information on Prime Time.  Mr Shatter had claimed in his appeal to the Circuit Civil court that the Commissioner had pre-determined the matter before he made his finding.

Dismissing Shatter’s appeal and awarding costs against him, Judge Linnane said that in her view the Commissioner had considered the matter fully and at length in the course of his investigation.

She said the commissioner had taken into account the arguments put forward by Mr Shatter;  fair procedures had been followed and reasons given for the conclusion and decision reached.

“I do not consider that it has been shown that the decision made was vitiated by any serious or significant error or series of such errors….and I dismiss the appeal,” Judge Linnane said.

Judge Linnane said the complaint made to the commissioner by Deputy Wallace was made against Minister Alan Shatter in relation to Prime Time in which Mr Shatter had taken part in his capacity as Minister.

It had not been disputed, she said, that Mr Shatter receive d the information about Deputy Wallace as Minister and all correspondence during the investigation had been sent to Mr shatter in his capacity as Minister and responded to from his Ministerial address.

She said that in her view the objection regarding Mr Shatter not having proper standing to bring his appeal had been well founded as his actions at the time had been carried out in his capacity as Minister for Justice and on this ground alone she would have dismissed the appeal.

The judge said that as she had also heard submissions and arguments from both Mr Shatter and the commissioner on the merits of the appeal and, in case she was incorrect on the standing point, she had considered those arguments and went on to dismiss the appeal on its merits.

Judge Linnane said the well recognised test to be applied  was found in a case of Ulster Bank v. McCarren in which Mr Justice Finnegan in 2006 ruled:

“….the plaintiff must establish as a matter of probability that, taking the adjudicative process  as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors.  In applying the test the court will have regard to the degree of expertise and specialist knowledge of the defendant.”

Mr Shatter had claimed in his appeal that the commissioner had made serious errors in deciding that he, the Minister, breached data protection laws by divulging the information he did about a political opponent on television.

Senior Counsel Eileen Barrington , who today was granted a stay on the issue of costs against Mr Shatter in the event of an appeal, had earlier told the court the commissioner’s decision had consequences for the former minister.

The consequences were personal, political and professional and had been a factor in his resignation as Minister last May.

Ms Barrington, counsel for Mr Shatter, said her client claimed there had been a clear absence of fair procedures in the commissioner’s decision0-making process.

She said that on the same day that Mr Wallace lodged a complaint against the Minister the commissioner had made a statement to RTE News to the effect that personal data had been disclosed during the Primetime debate.  This had shown a predetermination of matters and had been inappropriate

Mr Shatter had claimed the information about Deputy Wallace using the phone while driving had been given to him orally by the then garda commissioner and he had not made any written note but had retained the information solely in his head.

His lawyers had stated Mr Shatter was concerned about how the Data Protection Act could be used to regulate information retained solely in a person’s mind.

Mr Paul Anthony McDermott, counsel for the commissioner, had  submitted that the only person who could appeal the commissioneer’s decision was the current Minister for Justice.

Mr McDermott said Mr Shatter got the information as Minister, had gone on Prime Time as Minister and had deployed the information he had received as Minister, in order to defend the gardai on a discussion on penalty points.

Judge Linnane said there had been no dispute in the appeal that Mr Shatter had received the information from the then Garda Commissioner in his capacity as Minister at the time.

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