The High Court dismissed Dublin Bus’s appeal against an order requiring it to provide Margaret McGarr with a copy of CCTV footage relating to an alleged fall on one of its buses.
Mr Justice Hedigan ruled that the existence of legal proceedings between a data requester and a data controller does not, by itself, prevent an access request under the Data Protection Acts or justify refusing it. The appeal was on a point of law from a Circuit Court decision upholding an enforcement notice issued by the Data Protection Commissioner.
The judgment says McGarr allegedly fell on a Dublin Bus on 3 October 2008 and later began personal injury proceedings. Her solicitors viewed the CCTV footage in January 2010. In February that year, McGarr made a written request under the Data Protection Acts for information held about her, including video records. Dublin Bus refused, saying the material had been prepared in anticipation of litigation and was privileged.
The Commissioner investigated and issued an enforcement notice on 20 January 2011 requiring Dublin Bus to provide a copy of the footage. The Circuit Court upheld that decision on 5 July 2011. Dublin Bus then appealed to the High Court.
Dublin Bus argued that disclosure sought for use in the personal injury case should be handled through discovery in that case. It relied on the separation of powers and English case law concerning access requests made to obtain material for litigation. The Commissioner argued that the Acts did not make access to personal data conditional on a requester’s motive and contained no exception for cases where litigation had begun.
The High Court confined the appeal to whether legal proceedings between a requester and a data controller precluded an access request under the Acts. The judge criticised Dublin Bus’s notice of appeal because it did not identify a point of law, but proceeded after the company identified the issue and both sides provided amended submissions.
The judge found the English cases relied on by Dublin Bus distinguishable. He said they involved different statutory provisions and requests for information that might mention the requester, rather than a request for the requester’s own personal data. The Irish legislation, he said, provided no relevant discretion or litigation exception in the circumstances before him.
The court was not satisfied that Dublin Bus had established a point of law warranting reversal of the Circuit Court decision and dismissed the appeal. The judgment therefore left the enforcement notice in place; it did not determine the merits of McGarr’s personal injury claim.