Clare Daly (Dublin Fingal, Independent) | Oireachtas source

This is a significant set of several amendments, each of which aims to oblige the data protection commission to investigate all complaints it receives from ordinary Joes in the same manner as the Bill provides for it to investigate issues of its own volition or where it is the lead supervisory authority in a broader European investigation. As has been stated, the Bill places no obligation on the data protection commission to investigate the complaints it receives. All of our previous relevant data protection legislation provided that the data protection commission "shall" investigate the complaints it receives but there is no such explicit obligation in this Bill. Rather, the data protection commission can examine the complaint and take such action as it sees fit, which could include throwing the complaint in the bin. There is nothing to prevent it doing so.

When Max Schrems went to the Irish Data Protection Commissioner many years ago, his compliant was deemed frivolous and vexatious. That complaint was later upheld by the European Court of Justice and led to the striking down of the safe harbour principles for data sharing between the EU and the US. It turned out to be a very big deal but it was dismissed by the Data Protection Commissioner. We have tabled these amendments out of concern at what would happen if we allow the data protection commission to do no more than examine, given the outcome of the Schrems case which it was required to investigate.

It is not about the big marquee cases but, rather, trying to assist ordinary people to protect their rights. As was stated in regard to earlier groupings, the vast majority of citizens do not have access to courts in this country. We must have a data protection commission that investigates complaints to keep those complaints out of the courts and prevent the courts being bogged down, as Deputy O'Callaghan stated. We need a data protection commission that helps people to navigate this complicated area and get justice if their rights have been breached. Many Members tabled amendments with a similar aim on Committee Stage. Sinn Féin resubmitted its amendment but Fianna Fáil did not. There was cross-committee agreement, however, that the data protection commission should be obliged to investigate and that that was an important principle. Members differed on how that should be done.

I wish to outline why we have tabled this amendment in this format. Our issue with swapping the word "examine" for "investigate" relates to how the Bill is structured. Complaint handling under section 108, which provides for an individual to submit a complaint, is quite different from complaint handling under the sections providing for situations in which the data protection commission undertakes an inquiry. The Bill states that the data protection commission will initiate an inquiry of its own volition or where it is the lead supervisory authority in a complaint sent to it by another supervisory authority in the EU. "Inquiry" has a particular meaning in the Bill. Rather than the data protection commission having two similar but not identical procedures, one for complaints from the little people and one for issues it decides to look at of its own volition, the same inquiry procedure should apply across the board.

We maintain the position that the data protection commission has a wide discretion in how it conducts an inquiry, what kind of corrective action it takes on foot of a complaint, what kinds of enforcement order it might issue and so on. We do not propose to fetter its discretion. In essence, these large number of amendments are trying to create a single procedure for complaint handling by the data protection commission. It is a complicated Bill. We think these amendments would simplify it such that people looking at it and trying to figure out what will happen when they complain would not get a headache from so doing.

They would be able to get rid of the artificial distinction between complaints from ordinary people and complaints referred by another DPC. It would avert the absolutely cast-iron guaranteed inevitability of people who complain to the DPC feeling their complaint has not been investigated properly - either rightly or wrongly.

It is unfortunate that we did not get to debate the idea of a single, unified procedure for complaint handling properly on Committee Stage instead of getting bogged down in a debate about the phrase "frivolous and vexatious". We are conscious on Report Stage of such an important Bill that if we push these amendments we could possibly run the risk that it could lead to minor drafting issues that could have unintended consequences in other parts of the Bill, which is not our intention. We are conscious of that but we want to strongly register those points on the record and ask the Government at the very least to ask the commission to produce guidance for the general public that makes it clear that it can and will investigate the complaints of the little people. I ask that any such guidance would clarify the various enforcement and corrective powers that the Bill makes clear the DPC has when it comes to what it investigates itself or for other DPCs and that they are also available to us when it comes to our complaints. In order for people to assert their rights they must first understand what they are. Perhaps I will wait and see what the Minister says in his reply but we very much make that appeal in good faith and in the interests of delivering a good and accurate Bill.

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