Ms Anna Morgan:

I would like to preface my response to the Deputy's queries about the report that has been produced as part of our ongoing investigation into the public services card by saying there is a limit to how much we can say about an ongoing investigation. Members will be aware of case law in respect of to issues such as prejudgment and the issuing of comments that could potentially raise concerns regarding bias or the predetermination of issues. The investigation is still very much ongoing.

The Deputy referred to "concerns [around] collaboration between the regulator and the data controller", which in this context is the Department. I refute that comment absolutely. There is absolutely no collaboration. As an independent regulator, we have to investigate the facts of the issues that are to be determined in the scope of an inquiry. We do that in an entirely independent and impartial manner. The steps we follow in any investigation must accord with the right of all of the parties to any given process to fair procedures and procedural safeguards. The report in question, which was issued on a provisional basis to the Department, is said to be provisional because it allows for the Department's right to be heard. As the Deputy will be aware, this is a fundamental aspect of natural and constitutional justice within our legal system. Phraseology such as "provisional" is used to denote the fact that submissions were allowed to be received. The Department was given an opportunity to make submissions on the report addressing any aspects of the provisional findings which it did not consider to be an accurate reflection of the factual or legal situations, in order that we could take account of such matters in our further considerations and in finalising the report.

The Deputy also asked about the overall timeline for that report.

As referred to in our annual report, we received a significant volume of submissions totalling approximately 470 pages of documents from the Department in response to our invitation to make submissions. We are in the process of reviewing that material.

On the overall scope of the ongoing investigation, this has not been a static inquiry. There has been an element of dynamism as certain things have changed in the course of the investigation. For example, one of the issues that is, of course, being investigated relates to the question of transparency and information that is given to data subjects by the Department. During our investigation, the Department published a comprehensive guide to use of the public services card, PSC. It also published for the first time a consolidation of the relevant social welfare legislation in this area. The scope of the inquiry has had to move to take account of these changes. Additionally, members will be aware that the practice in regard to the use of the public services card to obtain a driver's licence has changed considerably in the course of our investigation. For example, between June 2017 and August 2018, a PSC was required to sit the driver theory test but, as of 20 August last year, the PSC became one of a number of acceptable forms of identity confirmation in that regard. The investigation is somewhat dynamic. We anticipate that it will conclude within the year with the issuing of our final report to the Department.

On the issues raised by the Deputy around publication of the report, the investigation has been conducted under the previous legislation, namely, the Data Protection Acts 1988 and 2003. Our powers of publication are constrained and determined by the extent of the powers set out in those Acts. Although the 2018 Act provides for express powers of publication under section 141, there is no equivalent section in the previous legislation. However, if the Department were to consent to the publication of that report, we would very much be open to considering its publication in full with the caveat that, obviously, consideration would have to be given to any confidential information that was not amenable to publication. Overall, we have no objection to publication of the report once it is finalised.