The High Court has dismissed Denis O’Brien’s appeal over a Data Protection Commission decision concerning information withheld by Red Flag Consulting Limited following a data subject access request.
Mr O’Brien submitted the request in June 2018 against the background of litigation with Red Flag concerning a dossier the consultancy had prepared for an unidentified client. Red Flag supplied some personal data but withheld material that could identify its client, relying on restrictions connected with legal claims, legal professional privilege and the rights and freedoms of third parties.
The Data Protection Commission dismissed Mr O’Brien’s complaint in November 2022. He appealed that decision to the High Court under the Data Protection Act 2018.
One of the principal arguments was that section 60(3)(a)(iv) of the 2018 Act, which permits necessary and proportionate restrictions on data rights in connection with legal claims and proceedings, was incompatible with Article 23 of the GDPR.
Ms Justice Lankford rejected that argument. She found that the section identifies the rights which may be restricted, the relevant category of processing and the requirement that any restriction be necessary and proportionate. The provision was therefore capable of operating consistently with the GDPR.
The court also rejected the contention that section 60 merely duplicated legal professional privilege. It held that section 162 separately protects privileged material, while section 60 can apply more broadly where restricting access is necessary and proportionate to protect the conduct or defence of civil litigation.
The judge further upheld the DPC’s conclusion that Red Flag’s duty of confidentiality to its client could fall within the “rights and freedoms of others” protected by Article 15(4) GDPR.
No serious or significant error was established in the DPC’s decision and the appeal failed on all grounds argued. Mr O’Brien was provisionally ordered to pay the legal costs of both the DPC and Red Flag, while the Attorney General was directed to bear his own costs.