Data watchdog may prosecute Government over PSC use

The Government is facing prosecution by the State’s data watchdog over its decision to defy a report that found the retention of information gathered on 3.2 million citizens was unlawful.

Following a Cabinet meeting on Tuesday, Minister for Social Protection Regina Doherty said there was "strong legal advice" in favour of the continued use of the public services card. She said the Government did not agree with the findings in a report by data protection commissioner Helen Dixon.

It is understood that the commission has sought further legal advice and is considering prosecuting the department if it fails to respond adequately to two particular orders.

The first was to provide a commitment within 21 days that the relevant bodies would stop processing such information. The second order made by the commission was for the department to provide an implementation plan within six weeks around how it planned to delete the data. It is understood that in the absence of such compliance, the commission may issue an enforcement order to the department.

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If this is not complied with, the commission is likely to then consider pursuing a prosecution before the courts.

Ms Doherty said on Tuesday her department does not accept the findings of the commissioner in relation to the card.

It may be the first time a regulator has been challenged by a Government body, but it would not be the last, she added.

The department is seeking a meeting with the commission to discuss the findings at the earliest opportunity.

The Government will continue acting on the basis of legislation passed in 2005, on the basis that they have a clear legal underpinning to what they are doing, said Ms Doherty.

A spokesman for the commission would not comment on potential future legal action, but called for the report itself to be published immediately in the public interest.

Correspondence

Head of communications for the commission, Graham Doyle, said: "I can confirm that we received correspondence from the Department of Employment Affairs and Social Protection last night. We will be responding to the Department by the end of this week.

“In relation to the issue around the publication of the report, the DPC believes that the report should be published immediately in the public interest.”

Under the terms of the legislation governing the commission’s investigation, the department is the only body that can publish the report.

The commission report found the department had unlawfully retained information gathered on 3.2 million citizens during the roll-out of the card, and should delete it.

It also found there was no lawful basis to insist the card be used to access services other than those directly administered by the department, limiting the scope of the project considerably beyond what had been envisaged.

Cabinet sources said that at Tuesday's meeting, there were "explanations from Regina Doherty, Paschal Donohoe and the Attorney General" and they were "resolute that the PSC is robust legally".

Ministers were told it would be “inappropriate and potentially unlawful” to withdraw or modify the use of the PSC.

Minister for Public Expenditure Paschal Donohoe said on Wednesday that he has reviewed “a number of different pieces of legal advice that have been made available to me now through the office of the Attorney General”.

“We do all this in the context of the greatest respect for the office of the Data Protection Commissioner, but we believe there is a strong case for gaining clarification regarding the views that the commissioner has issued.”