EQUAL STATUS ACTS 2000-2012
DECISION NO. DEC-S2018-008
PARTIES
A Separated Father
-AND-
The Data Protection Commissioner
(Represented by Rosemary Mallon BL, instructed by Philip Lee, Solicitors)
File Reference: ES/2014/0075
Date of Issue: 10th April 2018
1. DISPUTE
This dispute concerns a claim by the Complainant, that as a separated father, he was discriminated against by the Respondent on the grounds of marital status (now civil status), contrary to Sections 3(2)(b) and 5(1) of the Equal Status Acts 2000-2012 (as applicable at the material time). He contends that a decision dated 12th November 2013 by the Respondent not to investigate his complaint against an Authority regarding the alleged unlawful release of personal data to a School, amounted to discrimination on the ground of marital status as another citizen would not have been treated likewise.
The Complainant referred the aforesaid complaint to the former Equality Tribunal (now the Workplace Relations Commission, hereinafter ‘the WRC’) on 28th April 2014, having sent an ES1 Notification to the Respondent on 22nd November 2013 and received a ES2 Reply dated 19th December 2013, pursuant to Section 21 of the Equal Status Acts. On 9th December 2016, in accordance with her powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the WRC delegated this case to me, Aideen Collard, an Equality / Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is the date upon which my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hearing on 6th January 2017.
The Complainant represented himself and had the assistance of a support person, whilst the Respondent was represented by Ms Rosemary Mallon BL, instructed by Philip Lee, Solicitors. The Complainant indicated that he was familiar with the procedures. Written submissions in relation to the substantive complaint had been exchanged in advance of the hearing. However at the hearing, Counsel for the Respondent raised a fundamental jurisdictional issue, being the question of whether the principle of judicial immunity applies in circumstances where it is contended that the Respondent was exercising a quasi-judicial function in relation to the subject-matter of this complaint. As the Complainant was representing himself, I outlined the position in lay terms and adjourned the matter to enable both Parties to make written submissions and to determine this preliminary issue. I directed that if my finding was in favour of the Complainant, a new hearing date would be scheduled to hear the substantive complaint and if in favour of the Respondent, a decision would simply issue without further hearing. This was confirmed in writing to the Parties enclosing a Legal Opinion on this issue, obtained by the former Equality Tribunal. I also indicated reliance upon the key statutory provisions and relevant case law in my consideration of this matter. Written submissions were duly received from both Parties and all relevant evidence, submissions and documentation have been taken into consideration. Owing to the sensitive nature of the subject-matter, I have exercised my discretion to anonymise this complaint.
This decision pursuant to Section 25(4) of the Equal Status Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
PRELIMINARY ISSUE – WHETHER RESPONDENT IS ENTITLED TO JUDICIAL IMMUNITY
2. SUMMARY OF THE RESPONDENT’S SUBMISSIONS:
In summary, the Respondent contends that WRC (replacing the former Equality Tribunal) does not have jurisdiction to hear this complaint as it is entitled to judicial immunity in circumstances where it was exercising a quasi-judicial function in relation to the subject-matter of this complaint. By way of background, the Respondent (Office of the Data Protection Commissioner) was established under the Data Protection Act 1988. The Data Protection (Amendment) Act 2003 updated the legislation, implementing the provisions of EU Directive 95/46. The Data Protections Acts 1988 and 2003 are based upon the principle that personal data may only be processed in accordance with the provisions of those Acts, and they also endow individuals with certain rights in relation to the processing of their personal data. The Data Protection Commissioner is responsible for upholding the rights of individuals and enforcing the obligations upon data controllers as set out in the Data Protection Acts. The Data Protection Commissioner is appointed by the Government and is completely independent in the exercise of his or her functions, as required by EU Directive 95/46, which provides that the public authority responsible for monitoring compliance with the Directive in each Member State (in Ireland’s case, the Data Protection Commissioner) “…shall act with complete independence in exercising the functions entrusted to them.” (Article 28(1) of EU Directive 95/46, emphasis added). Individuals who feel that their rights under the Acts are being infringed can complain to the Data Protection Commissioner, who is empowered to investigate the complaint, and take whatever steps may be necessary to ensure compliance with the Data Protection Acts, subject to a right of appeal to the Courts under Section 26 of the Acts.
The Complainant, by letter dated 21st October 2013, wrote to the Data Protection Commissioner indicating that he would like to make a complaint against an Authority about the disclosure of his personal data to a School in breach of the Data Protection Acts. He enclosed a redacted letter from the Authority dated 17th May 2006 (which came to light as a result of a Data Protection request) as confirmation of same. By letter dated 12th November 2013, an Information Officer at the Office of the Data Protection Commissioner responded stating, inter alia: “We have however reviewed the limited material which you have provided. We consider that the matter you highlight concerns whether the release of an affidavit is acceptable or not. You have highlighted that this in your view contravenes the in camera rule. That would not be a matter for this Office but one for the court to have considered. While you have not supplied the extract of the affidavit, it seems likely that it would not amount to a disclosure under the Data Protection Acts as the matters you have discussed appear to concern the school which will likely have been aware of the enrolment matter. The inclusion of material about other parties, if that occurred, would not be a matter for complaint by you. In addition if the school were being invited in any way to contribute to the court proceedings at that time, this would further legitimise the provision of personal data, if any, to them. We cannot therefore identify grounds for investigation by this Office.”
The Respondent refutes the Complainant’s contention that the decision articulated to him by the aforementioned letter discriminated against him on the grounds of his marital status contrary to the Equal Status Acts. It contends that the decision communicated to the Complainant was to the effect that the Data Protection Commissioner did not have jurisdiction to consider his complaint. This was further clarified in the Respondent’s ES2 Reply, which stated, inter alia: “Under Section 8(e) the Court system is exempt from the obligations under the Data Protection Acts 1988 & 2003 where its own rules and procedures provide a legal basis for the processing of personal data for dealing with the issues that you have raised i.e. “restrictions on the processing of personal data do not apply if the processing is:- (e) required by any enactment or by a rule of law or order of the court.” There is nothing further that can be done by this office to investigate your complaint.” It is submitted that the decision subject to this complaint is no different from that of a Judge or a WRC Adjudication Officer determining that he/she does not have jurisdiction to hear a case/complaint e.g. because it is statute-barred. It is purely based upon the jurisdiction of the Data Protection Commissioner to investigate complaints as provided for by the legislation. As such, the Complainant is challenging the exercise of a quasi-judicial function.
It was further submitted that it was clear from the concise summary of the caselaw as outlined in the Legal Opinion provided that the principle of judicial immunity applies to statutory bodies in the exercise of their adjudicative functions. The Respondent is a statutory body with an adjudicative function. Moreover, the complete independence of the Respondent in carrying out that function is specifically enshrined in EU Directive 95/46 as cited above. It is clear from its letter of 12th November 2013 that the Respondent was considering whether it had jurisdiction to deal with the Complainant’s complaint. A decision in relation to jurisdiction i.e. whether a complaint can be investigated/heard or not for a particular reason is undoubtedly the exercise of a quasi-judicial function. In light of the Supreme Court findings in Beatty -v- The Rent Tribunal & Another (2006) 2 IR 191 as outlined in more detail below, it was submitted that the Respondent’s decision, along with the letter that communicated the decision, is one to which the principle of judicial immunity applies and it enjoys immunity from suit. To proceed with the investigation of this complaint would encroach upon the exercise of its quasi-judicial function. In the circumstances, the Complainant’s complaint in its entirety cannot proceed to investigation by the WRC under the Equal Status Acts, as it is entirely excluded on the grounds of the judicial immunity.
Additionally, and strictly without prejudice to the foregoing, the Respondent submitted that for the purposes of the Equal Status Acts, any determination/exercise of its quasi-judicial function by the Respondent does not constitute a service within the meaning on the Equal Status Acts. ‘Service’ is defined by Section 2 of the Acts as a “…service or facility of any nature which is available to the public generally or a section of the public,…”. It is submitted that the decision-making function of the Respondent as exercised in the instant case cannot be held to be a service within the meaning of the Acts.
For the aforesaid reasons, the Respondent submitted that this complaint should be dismissed.
3. SUMMARY OF THE COMPLAINANT’S SUBMISSIONS:
The Complainant does not dispute the factual background giving rise to this complaint as outlined above. In response to the aforesaid submissions, the Complainant submitted that whilst he accepted that the Respondent exercises a statutory quasi-judicial function and the legal position as outlined in the Legal Opinion provided, this applied to a decision made after an investigation whilst the instant complaint referred to the Respondent’s refusal to investigate his complaint at all. He also sought to distinguish the factual circumstances of his complaint from that subject to the caselaw cited in the Legal Opinion, contending that the Respondent had refused to examine his complaint on the basis of a number of incorrect assumptions which he highlighted from the passage of the letter cited above. He took particular issue with the reference to the alleged breach of the ‘in camera rule’ as not being a matter for the Respondent but one for the relevant court to have considered. It appears that he did not further engage with the Respondent in terms of providing additional information about his complaint or otherwise challenging its position before sending the ES1 Notification and subsequently referring this complaint.
The Complainant also took further issue with the Respondent’s contention that it cannot be subject to a complaint under the Equal Status Acts as it is not a service provider within the meaning of the Acts, as being unfounded and contrary to the conclusions contained in the Legal Opinion provided.
For the aforesaid reasons, the Complainant sought to have his substantive complaint investigated.
4. FINDINGS & CONCLUSIONS
As a matter fundamental to my jurisdiction to hear a complaint of discrimination under the Equal Status Acts against a statutory decision-making body such as the Respondent, it is necessary to firstly determine whether the principle of judicial immunity applies. The Parties take no issue with the correctness of the legal position as set out in the aforesaid Legal Opinion obtained by the former Equality Tribunal for guidance in relation to its jurisdiction to hear complaints against similarly constituted statutory bodies. Briefly, the Equality Tribunal (now ‘WRC’) is given extensive powers pursuant to the Equal Status Acts to determine complaints under the Acts in relation to discrimination in the context of goods and services. In this respect, Section 5(1) of the Acts prohibits discrimination by all persons or bodies who provide a “…service or facility of any nature which is available to the public generally or a section of the public,…”. Having reviewed the relevant caselaw on the area, it was concluded that unless expressly excluded, a statutory decision-making body acting bona fide in the public interest is entitled to judicial immunity in relation to its decision-making functions. Reference was made to the leading case of Beatty -v- The Rent Tribunal & Another (2006) 2 IR 191, which extended the principle of judicial immunity to statutory decision-making bodies. Amongst its findings, the Supreme Court found that the defendant subject to a claim in that case was a statutory body exercising statutory adjudicative duties in the public interest and, provided it was acting bona fide within its jurisdiction, it enjoyed an immunity from an action in ordinary negligence. Furthermore, the immunity of a statutory tribunal arose at common law and if it was to be removed, the statute concerning it had to so specify. By obiter dictum, it was held that if a judge or tribunal was to knowingly engage in behaviour that was criminal or malicious, the immunity to a claim for damages for misfeasance of public office would not apply. Mr Justice McCracken also affirmed the underpinning principle that it was in the public interest that such a body should be able to perform its functions “…without the fear or threat of action by individuals. The fact that it is performing a function which is in the public interest may outweigh any duty of care to private individuals.” The Legal Opinion also acknowledged that the principle of judicial immunity does not extend to a statutory body’s exercise of administrative functions. For instance, Fogarty -v- Employment Appeals Tribunal DEC-S2009/087, concerned a successful complaint of discrimination on the ground of disability against the Employment Appeals Tribunal for the failure to provide reasonable accommodation at a hearing.
There is no issue that the Respondent in the instant case is a statutory body exercising statutory adjudicative duties in the public interest. Applying the law as outlined above to the instant facts, and in the absence of any express legal exclusion, I am satisfied that as the services of the Respondent are available to the public generally, that it is subject to complaint under the Equal Status Acts unless bona fide exercising its quasi-judicial functions. In this respect, I note that the wording of Section 10 of the Data Protection Acts affords the Respondent considerable latitude in determining whether a complaint in relation to a breach of the Data Protection legislation merits further investigation. It is clear from the letter dated 12th November 2013 from the Respondent as cited aforesaid, that this is what occurred in the instant case. Having reviewed the information provided by the Complainant, the Information Officer concluded that no grounds for investigation by the Respondent had been identified. There is no suggestion that the Respondent refused to investigate the Complainant’s complaint without any consideration of same or any other mal fides on its part that might serve to lift the protection of judicial immunity as envisaged by Beatty. Therefore, I am satisfied that the Respondent is entitled to such immunity and it follows that I do not have jurisdiction to hear this complaint regardless of its merits.
5. DECISION
Section 25(4) of the Equal Status Acts 2000-2012 requires that I make a decision in relation to this complaint. I have concluded my investigation of this complaint and based on the aforementioned reasoning, find that the Respondent is entitled to judicial immunity in relation to the subject-matter. Accordingly, I do not have jurisdiction to hear this complaint and dismiss the complaint in full.
__________________________
Aideen Collard
Adjudication / Equality Officer
10th April 2018