The High Court has dismissed an appeal by David Fox over the Data Protection Commissioner’s decision not to investigate two complaints, holding that an opinion that complaints were frivolous or vexatious could not be appealed under the statutory process at issue.
Mr Justice Michael Peart ruled that the Circuit Court judge was correct to find that no appeal lay against the Commissioner’s opinion. He affirmed the Circuit Court order made on 4 May 2011.
Fox had complained to the Commissioner in letters dated 10 December 2010 and 19 January 2011. The Commissioner’s office informed him that the complaints were considered frivolous or vexatious and that it would not enter into further correspondence on the issues raised.
Fox appealed to the Circuit Court, arguing that the Commissioner’s view amounted to a decision on his complaints and could be appealed under section 26 of the Data Protection Act 1998, as amended. The Circuit Court dismissed that appeal after considering whether it had jurisdiction to hear it. Judge Linnane concluded that an opinion that a complaint was frivolous or vexatious was not a decision covered by the appeal provision.
The High Court examined the sequence set out in section 10. The Commissioner was required to investigate a complaint unless it was considered frivolous or vexatious. Where a complaint was investigated, the Commissioner was to try to resolve the matter amicably and, if that failed, notify the complainant of the decision and the right of appeal.
Peart held that the reference to “the decision” in section 10 concerned a decision following an investigation. It did not include the earlier opinion that a complaint was frivolous or vexatious, which meant the section 26 appeal provision did not apply to that opinion.
The judge noted that the same issue had been decided in *Nowak v Data Protection Commissioner* [2012] IEHC 449 and adopted Mr Justice Birmingham’s reasoning. The High Court’s ruling addressed the availability of an appeal at this procedural stage; it did not determine the substance of Fox’s underlying complaints.