The Circuit Court has dismissed Aimee Scott’s appeal against a Data Protection Commissioner decision that allowed Mason Technology Limited to withhold certain personal data on the grounds of legal professional privilege.
Judge John O’Connor delivered the judgment on 4 May 2022 in the Dublin Circuit, County of the City of Dublin. The appeal concerned the Commissioner’s 20 May 2019 decision on a complaint Scott made on 12 November 2017.
Scott’s complaint alleged that Mason had not fully complied with an access request she made on 15 August 2016. Mason responded to the request on 22 September 2016. In its submissions to the Commissioner, Mason argued that some personal data could be withheld under section 5(1)(g) of the Data Protection Acts 1988 and 2003 because it was legally privileged. The Commissioner accepted that position.
On appeal, Scott argued that the Commissioner was wrong to find that an IBEC-employed solicitor could have a solicitor-client relationship with Mason. She also challenged whether such a relationship had in fact existed and whether the communications qualified for legal advice privilege.
Judge O’Connor said a section 26 appeal was not a full rehearing. Scott had to show, on the balance of probabilities, that the decision was affected by a serious and significant error, considering the adjudicative process as a whole and having regard to the Commissioner’s expertise.
The court found it was possible for Mason, an IBEC member, to be a client of an IBEC-employed solicitor because the solicitor was employed to provide legal advice to IBEC members. It also found that the Commissioner was satisfied a solicitor-client relationship existed, and that Scott had not shown a cogent reason for the court to take a different view.
The judge said the relationship alone did not automatically make communications privileged: the solicitor also had to act in a professional capacity. Having considered the Commissioner’s decision, the court was satisfied that the solicitor had provided legal advice in that capacity in relation to an employment dispute.
The court concluded that the Commissioner had applied the correct legal test and was right to allow the data to be withheld on privilege grounds. It dismissed the appeal. The judgment did not order further disclosure of the disputed data.