The High Court has dismissed David Fox’s appeal against a Circuit Court decision upholding the Data Protection Commissioner’s 2019 findings on three complaints about the National Gallery of Ireland (NGI). The appeal was limited to points of law. Mr Justice Mark Heslin held that Fox’s originating motion identified no point of law and that the court therefore had no jurisdiction to hear the appeal.
Fox had complained that the NGI unlawfully processed his personal data through covert CCTV, failed to provide access to all data he had requested, and monitored his work email. The Commissioner had decided in the NGI’s favour on those three issues. The Circuit Court dismissed Fox’s statutory appeal in April 2022, finding that he had not shown, on the balance of probabilities, a serious and significant error in the Commissioner’s decision or the process as a whole.
The High Court said its role was not to rehear the complaints or reconsider their merits. It found that Fox’s motion asserted that the Circuit Court was wrong to uphold the Commissioner, but did not identify a legal point that would permit the appeal. The judge dismissed the appeal on that basis. He then considered Fox’s principal arguments as an alternative, “lest” he was wrong about jurisdiction.
Those arguments included that there was no evidence a theft of wine had occurred before the NGI installed a covert camera, that the Circuit Court applied the wrong appeal test, and that the NGI’s email monitoring and refusal of access breached data protection rights. The judgment said Fox had previously acknowledged evidence of a theft, and that the Commissioner had assessed the camera and email monitoring under the legitimate-interests provisions of the Data Protection Acts. It also noted that the Commissioner found the NGI had provided access to some data and sought clarification about what remained outstanding, which Fox did not provide.
The court rejected the contention that the Criminal Justice (Surveillance) Act 2009 applied to the NGI, observing that the Act covered specified State bodies and not the Gallery. It also said the Commissioner’s role was to decide whether the Data Protection Acts had been breached, not compliance with other legislation. The High Court found no basis to disturb the Circuit Court’s decision and described several further arguments as unsupported by evidence or outside the issues raised earlier.
The court did not make a final costs order in the judgment. It gave a preliminary view that the Commissioner, as the successful party, should receive costs under the usual rule, and directed the parties to correspond on the form of order. If they could not agree, written submissions were to be filed by 16 October 2023.