The Supreme Court, in Nowak v The Data Protection Commissioner  IESCDET 49, has granted Mr Nowak leave to appeal an ex tempore decision of the Court of Appeal delivered on 24 April 2015
The Court of Appeal upheld a decision of High Court, which in turn confirmed a decision of the Circuit Court, that there is no jurisdiction to appeal a determination by the Data Protection Commissioner (DPC) not to investigate a complaint. The DPC had determined that the appellant’s exam script was not personal data and his complaint was frivolous or vexatious.
The applicant was an unsuccessful candidate in an exam set by the Chartered Accountants Ireland (CAI). He had submitted an access request to the CAI, in which he specifically sought his examination script. Whilst the CAI provided him with a considerable amount of data in response, it refused to provide him with a copy of his exam script. The applicant complained to the DPC who considered that the CAI was correct that the exam script was not personal data and refused to investigate on the basis that his complaint was bound to fail, and was frivolous and vexatious. Mr Nowak sought to appeal that decision. The DPC responded that no appeal was possible because there had been no investigation, and accordingly, no decision pursuant to section 10 of the Data Protection Acts (DPAs) 1988 and 2003.
The Circuit Court upheld the DPC’s view that no appeal lay, but proceeded to consider the substantive issue, and upheld the DPC’s decision that the exam script was not personal data. Mr Nowak appealed this decision to the High Court, where Birmingham J. adopted the same approach as the Circuit Court. The Court of Appeal, in turn agreed with the High Court. All of the courts which considered the matter accepted that the determination of the DPC was subject to judicial review but took the view that it did not come within the statutory appeal process.
In these proceedings the applicant sought leave to appeal to the Supreme Court.
The Supreme Court granted the applicant leave to appeal on two grounds:
(1) The Court of Appeal had erred in law in holding that the appellant was not entitled to appeal to the Circuit Court from the DPC’s determination that the complaint was frivolous and vexatious. The Court accepted that this involved an issue of general public importance, since it concerned the interpretation of important legislation having an effect on the public, and in particular the right of the public to appeal determinations of the DPC.
(2) The Court of Appeal erred in law in holding that the DPC was entitled to conclude that the exam script, the subject of the complaint, was not personal data with the meaning of the Data Protection Acts 1988 and 2003. The Court considered that it was in the interests of justice that the applicant be allowed to argue that the decision of the Court of Appeal upholding the substantive decision of the DPC (and the Circuit and High Court) was wrong, since otherwise an appeal would be limited to the procedural issue.
As we previously reported, this issue also arose in the case of Fox v The Data Protection Commissioner  IEHC 49. In that case Peart J. followed Birmingham J’s decision in Nowak, concluding that where the DPC declines to investigate a complaint, the court has no jurisdiction to hear an appeal. Interestingly, Peart J. stated in Fox that: “Even without that judgment [in Nowak] which is worthy of respect as a judgment of a judge of equal jurisdiction, and save in exceptional circumstances to be followed in the interests of consistency, I would reach the same conclusions”.