Does a phone company have to tell you whether or not the police has accessed your data?

In a recent decision the Data Protection Commission confirmed that a telephone company had to tell a subscriber whether or not details of his phone usage had been accessed by the police unless it could actually demonstrate that there would be prejudice to a criminal investigation or prosecution.

A redacted copy of the decision has been posted on with the permission of the data subject.

This is an important decision which opens the door to greater transparency around police access to telecoms subscriber information retained under the Communications (Retention of Data) Act 2011. Under this regime there is limited oversight via the Complaints Referee – who crucially can neither confirm nor deny whether an access request unless there has been unlawful access.

This new decision of the Data Protection Commission now confirms that individuals can look for confirmation of whether an access request has been made by a state agency under the 2011 and this request can only be refused if a phone or internet company can show that it would be prejudicial to a criminal or related matter for the request to be answered.

In this particular case we acted for the data subject who had asked the telecom provider, Eir, to say whether or not a state agency had requested access to his information which Eir retained under the 2011 Act. Eir refused to answer the request citing provisions of the 2011 Act and a general policy concerning access to retained data.

The Commissioner found that this request was a valid subject access request and that Eir had failed to answer it within the prescribed time. In addition the Commissioner found that the generic policy relied on by Eir did not constitute a valid statement of reasons and in addition Eir had not informed the data subject about his right to complain to the Data Protection Commissioner.

Once the complaint was lodged Eir sought to rely on section 5(1)(a) of the Data Protection Acts 1988 to 2003 which restricts the right of access in relation to personal data “kept for the purpose of preventing, detecting or investigating offences, apprehending or prosecuting offenders …. , in any case in which the application of that section to the data would be likely to prejudice any of the matters aforesaid

Ultimately Eir admitted that it could not show that any of the listed matters would likely be prejudice and that it could not rely on this restriction to the right of access.

Click here to access a copy of the decision.

Government fined more than €5 million by European Court for decade-long environmental law breach

Ireland was sanctioned by the Court of Justice of the European Union because of a failure to carry out an environmental impact assessment of a wind farm development in Derrybrien, Co Galway. Ireland was ordered to conduct an assessment by the court in 2008 but has yet to comply with the European court’s directions in the ten years which followed. The European Commission then took Ireland back to court resulting in serious fines.

European Law states that an environment impact assessment must be carried out before  permission is granted for any project which is likely to have significant effects on the environment . No assessment was carried out before the construction of Derrybrien despite the clear European law on the matter. Construction of the wind farm in 2003 caused a massive landslide which killed thousands of fish and severely damaged the surrounding environment. Following this, Ireland was taken to court in 2008 and lost.

Ireland was then given two months to do an environmental impact assessment on the land. The State came up with a draft plan to carry out a non-statutory assessment but even this came to nothing. Ireland was granted extra time by the EU with December 2016 as the  final deadline but still no action was taken.

The CJEU this year took the Ireland back to court, on grounds that Ireland had not made any significant effort to carry out an environmental impact assessment of the project nor made any concrete plans to do so. They decided that the delay in complying could not be justified and there was no excuse for the inaction.

Ireland argued that they had had no power to direct the company (which is publicly owned) in ownership of the land to carry out the assessment, citing that a judgement cannot affect third parties when they are not heard in proceedings. They also argued that the measures that Ireland was required to take were never specifically identified, meaning that their steps toward a non-statutory assessment technically complied with the 2008 judgement. However, the court rejected these arguments and decided in favour of the European Commission.

A large financial penalties was imposed on Ireland to prevent the recurrence of similar infringements on EU law. The court found that the best way to do this would be t with a lump sum, followed by a significant daily amount as long as the breach continued. This was done to encourage Ireland to carry out the long-awaited environmental impact assessment. The final amount decided on by the courts was a lump sum of €5,000,000 followed by a periodic penalty payment of €15,000 per day from the date of delivery of the present judgement until the date of compliance with the 2008 judgement.

It is clear that all of the expense could have been avoided if Ireland ensured that the wind farm operator, which it owns, met its responsibilities and conducted an environmental impact assessment.

This post was authored by Daire Murray, a TY student from Loreto Kilkenny, who spent the week working with us.

FP Logue secures social welfare payments for client who refused to apply for Public Services Card

FP Logue received confirmation recently that the Department of Employment Affairs and Social Protection has agreed to pay social welfare benefits to a client who refused to register for the Public Services Card (PSC).

Our client had presented a passport and proof of address with an application for benefits and received a formal decision from the Deciding Officer that the payments would be available for collection in the local post office in due course.

Some days later our client was informed by a member of staff that the approval had been a mistake and that the payments would be suspended until such time as an application for the PSC was processed. Our client refused to make the application and asked for written reasons to be provided. The position was subsequently confirmed in writing that payments were suspended until a PSC application was processed.

We wrote to the relevant official on our client’s behalf pointing out that there was no requirement under social welfare law for an applicant to register for the PSC and that the payment had been unlawfully suspended and that our client had been grossly misinformed as to their rights by officials.

We have now received confirmation that payments have been released confirming our assertion that a PSC registration is neither mandatory nor compulsory for the purposes of accessing social welfare benefits.