David Norris (Independent) | Oireachtas source

I move amendment No. 93:

In page 41, between lines 36 and 37, to insert the following:“(15) In the event of a party issuing a complaint under section 4 of the Data Protection Act 1988 (as amended) and the other party failing to provide any documentation in whole or in part which the party who failed to supply such documentation subsequently wishes to rely on in any case before an adjudicating office or on appeal to the Labour Court that party shall be precluded from producing or relying on such documentation.”.

This follows legal procedure in a situation in which discovery is not made and the court does not have information referred to it. In such a case, a late discovery is usually precluded. There are no discovery procedures and none are proposed. Many employees will issue a notice under the Data Protection Acts 1988 and 2003. They then come for a hearing and find documentation which had not been produced is subsequently produced. Such a surprise disclosure of information at a late date in proceedings wrong foots people and is very unfair to them. It means a case must be adjourned to enable the individual to review the documentation and, if necessary, submit a further complaint to the Data Protection Commissioner to check whether there is any other relevant documentation which he or she has not received. Again, it comes back to the question of disclosure. For the purpose of saving costs, it seems reasonable that a party who does not comply with a statutory provision to produce documentation should not subsequently be able to rely upon the same in any case.

This has happened in cases in which information has been deliberately suppressed until a late stage in a case in order to wrong foot the other side. This tactic is wrong. An alternative to this would be to provide that where a request made under the Data Protection Acts 1988 and 2003 is not complied with, and documentation is subsequently produced to an adjudication officer, it would be an offence which the adjudication officer would report. This may ensure appropriate documentation is produced in advance and avoid unnecessary adjournments of cases. It is all about the production of documents and the idea that one side can withhold documents and produce them suddenly, like a Jack-in-the-box, to wrong foot the other side.