Dublin Bus -v- Data Protection Commissioner
Circuit Court
Judgment was delivered on July 5th, 2011, by Judge Jacqueline Linnane.
Judgment
A woman who fell on the stairs of a Dublin bus was entitled to the CCTV footage of her accident under the Data Protection Acts.
Background
A woman who was travelling with Dublin Bus in October 2008 claimed she fell on the stairs of the bus. She applied to the Personal Injuries Assessment Board in October 2009. Dublin Bus subsequently arranged for her solicitor to view CCTV footage taken in the bus at the time of the incident.
The woman applied for access to the footage in February 2010 under Data Protection Acts, which were enacted to protect the right to privacy and allow individuals access to personal information. Her request was denied by CIÉ’s group investigation department.
It argued the documents and records had been prepared in contemplation of litigation and fell within legal professional privilege.
A complaint was made by the woman’s solicitor to the Data Protection Commissioner who issued an enforcement notice in January this year requiring Dublin Bus to give access to the footage.
Counsel for Dublin Bus argued there was a clear intention to bring personal injuries action and the woman was trying to usurp the function of the court by obtaining documents through the data protection process instead of through discovery.
He also argued that in the English case, Durant v Financial Services Authority (2003), the court ruled it had discretion on whether to direct access to personal data.
Counsel for the Data Protection Commissioner argued that by allowing inspection of the CCTV footage, privilege had been waived. He also argued there was no provision in the Irish Data Protection Acts that precluded a person from exercising their right to access.
Decision
Judge Linnane said it was not disputed that the CCTV footage came within an application for discovery or that it constituted personal data within the meaning of the Data Protection Acts.
She detailed the Durant case, in which an individual sought details of a complaint he made to the Financial Services Authority about Barclays Band under section 7 of the UK Data Protection Act 1998.
She said the Act gave discretion as to whether to grant an order for access under that section.
Referring to Ezsiais v the Welsh Ministers 2007 EWHC B15 QB, cited by Dublin Bus, the judge said the applicant had sought documents generated by the National Assembly of Wales about his complaint against the NHS Trust.
In both cases, it was clear the information sought was not personal data and also that the UK legislation gave the court discretion as to whether to order access.
The Irish Acts did provide for exceptions to access under section 5 (1), she said, in circumstances where there was a claim of privilege to be maintained between a client and his legal advisers.
“It is clear in this case Dublin Bus does not come within the privilege exception provided for in section 5 (1) (g) of the DPA and the UK DPA of 1998 is distinct from our legislation in that it confers a discretion on the court as to whether to grant an order for access.”
She dismissed the appeal.
Solicitors: M Roche Co for the appellant; Paul Anthony McDermott BL, instructed by Phil Lee Solicitors, for the respondent.
