Are oral hearings in the ODPC’s future?
Lawlor Partners is currently acting for an aggrieved data subject in judicial review proceedings arising out of the Office of the Data Protection Commissioner’s (‘OPDC’) refusal to conduct an oral hearing, in circumstances where it was unable to resolve a conflict of facts based on the documentary evidence submitted in connection with a complaint. The applicant issued judicial review proceedings on foot of the Commissioner’s refusal to conduct an oral hearing.
The legal issue centred on whether there is an obligation on the ODPC to conduct an oral hearing to resolve an allegation of verbal disclosure. The argument put forward was that a full and proper investigation was not carried out.
Specifically, the applicant’s argument was that the refusal to conduct an oral hearing was a breach of their right to fair procedures. The applicant also sought an ‘order of mandamus’ (forbearance command) directing that the ODPC conduct an oral hearing in relation to he applicant’s complaint.
The Applicant’s Position
Counsel for the applicant referred to the Data Protection Acts 1988 & 2003 (‘DPAs’), the 1981 Convention, the Data Protection Directive (95/46/EC) and various case law in putting forward their argument.
Fintan Lawlor, Partner at Lawlor Partners Solicitors, highlights a current significant data protection complaint case and explains what it could mean for the DPC’s power to conduct oral hearings
Section 10 of the 1988 Act, as amended by Section 11 of the 2003 Act, sets out the Commissioner’s role in the investigation of data breaches.
It states that the Commissioner may carry out such investigations as she considers appropriate in order to ensure compliance with the provisions of the DPAs.
Counsel for the applicant referred to the role of the authorised officer in the course of an investigation. It was submitted that in investigating complaints, the Commissioner has a discretion which includes a power to conduct oral hearings if the Commissioner forms the view that such oral hearings are necessary to perform its duties under data protection legislation.
Section 10 (1) (a) of the 1988 Act bestows a wide discretion on the Commissioner in relation to the form and conduct of its investigations.
The Commissioner may carry out such investigations as she consider appropriate. Counsel for the applicant proposed that an oral hearing is still permissible even when the legislation is silent the issue. Supporting this perspective, courts have in the past imposed obligations beyond the scope of the relevant statutory regimes in order to satisfy the requirements of fair procedure.
Counsel for the applicant referred to The State (Boyle) v The General Medical Services (Payment) Board  ILRM 14 which is authority for the proposition that an oral hearing may be required even in circumstances where the legislation governing the administrative process involved does not provide or oral hearings.
In Mooney v AN Post  4 R 288 the Supreme Court held that an oral hearing may be mandated in the absence of legislation requiring one if the requirements of natural and constitutional justice mandate it. Again, in Greenstar Limited v Dublin City Council & Ors  3 IR 510, the High Court held that an oral hearing may be required, not withstanding that the legislation does not require one. In Lyons & Murray v Financial Services Ombudsman & Bank of Scotland PLC  IHEC 454, Hogan J accepted that the appellants could not realistically hope to establish the underlying merits of their case without an oral hearing.
The Court referred to the numerous decisions of the High Court involving challenges to the Financial Services Ombudsman’s failure to hold oral hearings. Counsel for the applicant submitted that an oral hearing will be required where:
- there are unresolved conflicts of fact in respect of any matter material to a ruling and if such ruling could adversely affect a party, those conflicts of fact should be resolved by an oral hearing; and
- in order for there to be an oral hearing, the conflict of fact must be a material conflict that could result in an adverse finding against the affected party.