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Judges and Data protection
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31-10-2013 11:34pm#1Quite simple really.
Where do judges, as office holders, stand in relation to data protection?
I hace come across judgements where serious data protection issues would seem to arise. These include national insurance details, credit card, mobile phone, and passport numbers.
Apparently, there are no data protection issues to be considered, since court judgements do not come under the remit of the Commissioner.
Is this a topic of serious concern to data subjects?
Especially a data subject who chooses to pursue his, or her, case through the courts?
I have my own opinions on this, but would be interested to hear your opinions first.0
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Join Date:Posts: 13692
Cody Pomeray wrote: »Quite simple really.
Where do judges, as office holders, stand in relation to data protection?
I hace come across judgements where serious data protection issues would seem to arise. These include national insurance details, credit card, mobile phone, and passport numbers.
Apparently, there are no data protection issues to be considered, since court judgements do not come under the remit of the Commissioner.
Is this a topic of serious concern to data subjects?
Especially a data subject who chooses to pursue his, or her, case through the courts?
I have my own opinions on this, but would be interested to hear your opinions first.
Do you have any examples of e.g. credit card numbers being used?
People often misinterpret data protection to mean "don't ever give out any personal information in any circumstance". So long as it is relevant to a case, then I can't see how there would be a breach of data protection, even if data protection applied to courts.0 -
I don't ever remember reading what I would consider sensitive personal data in a judgement. But in any event the Constitution requires that justice be administered in Public, if any personal information is quoted in a judgement it must be pertinent to the case, therefore must be disclosed publicly. But as an aside I have recently noticed in a judgement stamped on the top "no redaction required", unless this is some new policy.
I know Asylum cases redact names so the parties are not identified, same in Family. I think everything else is fairly open to the public.0 -
Yes, but I would be reluctant to repost it here.johnnyskeleton wrote: »Do you have any examples of e.g. credit card numbers being used?
The DPAs do apply to the courts, unless I am missing something not contained in the acts.So long as it is relevant to a case, then I can't see how there would be a breach of data protection, even if data protection applied to courts.
Otherwise, I could not agree more. I do not consider mobile phone numbers, credit card numbers, and PPS/ passport numbers to be relevant data.
But they appear to be exempt, in the eyes of the data protection commissioner.0 -
Can't say I've ever seen details such as pps, credit card numbers etc being included in a judgment.
Presumably the relevant exemption is s 8 of the DP acts: ......required...for the purposes of ... Legal proceedings.0 -
Just because something is legally allowed, doesn't necessarily mean it should be done. There is the constitutional right to privacy though.Cody Pomeray wrote: »But they appear to be exempt, in the eyes of the data protection commissioner.
So while, if say a plaintiff becomes infected with a disease and sues the party responsible, I can see the case for both redacting the plaintiff's name (privacy, further damage to the plaintiff and the freezing effect(?)) or not (transparency of the law, prevent multiple claims for the same injury). Likewise, if a case is about a house, it would be reasonable to include the address of the house, even if that reveals things about the parties.
However, I can't see how including credit card, mobile phone, and passport numbers, etc. are relevant. Surely it can be referred to as "the credit card" or "Joe Bloggs credit card".0 -
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I wouldn't disagree. The above seems entirely sensible.
I started this thread mainly out of bemusement, at a decision of the data protection commissioner.
I do apologize for not linking to the relevant judgements. Nevertheless, if one is so minded as to search for judgements quoiting national insurance numbrs, passport numbers, a credit card number (one case), and mobile phone numbers they can - apparently, justifiably - be found.
At least, the courts service continue to publish same, with the apparent 'consent' of the Data Protection commissioner.
i find this particularly fascinating in contrast with the apparent DP concerns directed at sites like boards.ie.
I find this amazing in the context of my reading of the DPAs, and am merely curious as to others' interpretations.0 -
This is a more complicated area than might appear at first glance.
The pat answer is to say that data protection is almost completely excluded from the operation of the courts by virtue of s.2A(i)(c)(i) or s.2B(1)(b)(vi) of the DP Acts - i.e. in each case that the processing is "necessary for the administration of justice".
However, this is undermined when we ask whether inclusion of personal data is in a judgment in fact "necessary" in the sense required by the DP Acts? (Bearing in mind the strict interpretation given to necessity in other DP contexts.) Might the argument be made that (for example) names could be redacted from the judgments published on courts.ie or in law reports without the judgments thereby losing their value as precedents?
At this point we are faced with an apparent clash between the constitutional commitment to justice being done in public and the statutory obligation to minimise dissemination of personal data. Can it be said that inclusion of personal information in judgments is "necessary" to meet the obligation in Article 34.1 that justice shall be administered in public? A good argument can be made to this effect, especially given that the courts in effect have their own self-contained privacy regime in relation to matters such as family law, in camera hearings, anonymity of rape complainants, etc. and of course Art. 34.1 envisages that any carve-outs from the principle of publicity must be prescribed by legislation.
That said, this approach would still leave judges exposed to other data protection obligations where the Art. 34.1 commitment to publicity is not a complete answer. Imagine for example that a judge loses a laptop with personal information of litigants. In these cases is it possible that the judge faces liability under the DP Acts as a data controller?
While there's no Irish guidance on this point that I'm aware of, the English courts have recently considered the matter and take the view that judges should be treated as data controllers in respect of the information they handle in the course of adjudication:
http://www.magistrates-association.org.uk/members/dmdocuments/it_and_information_security_guidance_26_09_12.pdf0 -
Cody Pomeray wrote: »
I started this thread mainly out of bemusement, at a decision of the data protection commissioner. .
Which decision, out of interest?0 -
This is a more complicated area than might appear at first glance.
The pat answer is to say that data protection is almost completely excluded from the operation of the courts by virtue of s.2A(i)(c)(i) or s.2B(1)(b)(vi) of the DP Acts - i.e. in each case that the processing is "necessary for the administration of justice".
However, this is undermined when we ask whether inclusion of personal data is in a judgment in fact "necessary" in the sense required by the DP Acts? (Bearing in mind the strict interpretation given to necessity in other DP contexts.) Might the argument be made that (for example) names could be redacted from the judgments published on courts.ie or in law reports without the judgments thereby losing their value as precedents?
At this point we are faced with an apparent clash between the constitutional commitment to justice being done in public and the statutory obligation to minimise dissemination of personal data. Can it be said that inclusion of personal information in judgments is "necessary" to meet the obligation in Article 34.1 that justice shall be administered in public? A good argument can be made to this effect, especially given that the courts in effect have their own self-contained privacy regime in relation to matters such as family law, in camera hearings, anonymity of rape complainants, etc. and of course Art. 34.1 envisages that any carve-outs from the principle of publicity must be prescribed by legislation.
That said, this approach would still leave judges exposed to other data protection obligations where the Art. 34.1 commitment to publicity is not a complete answer. Imagine for example that a judge loses a laptop with personal information of litigants. In these cases is it possible that the judge faces liability under the DP Acts as a data controller?
While there's no Irish guidance on this point that I'm aware of, the English courts have recently considered the matter and take the view that judges should be treated as data controllers in respect of the information they handle in the course of adjudication:
http://www.magistrates-association.org.uk/members/dmdocuments/it_and_information_security_guidance_26_09_12.pdf
Yes, and while I wouldn;t disagree with the 'exclusionary' principle you mention, I would consider s. SA sub-s. (d) to be particularly relevant to the Irish courts, especially as it relates to credit card, monile phone, passport, and national insurance numbers.(d) the processing is necessary for the purposes of the legitimate interests pursued by the data controller or by a third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject.
I would be reluctant to introduce a constitutional element to this debate right away, although I fully appreciate the motivation to so do.0 -
I regularly read judgments on courts.ie & elsewhere and I have never read data you describe.
I do recall reading a CCA judgment however that involved mobile phone triangulation and the number was given in the judgment but that is all. That is the only occasion I can think and I've been reading the things quite a few years now.0 -
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Well you must have missed these ones. I can assure you they're there, and they are just the ones I have come across.I regularly read judgments on courts.ie & elsewhere and I have never read data you describe.
I do recall reading a CCA judgment however that involved mobile phone triangulation and the number was given in the judgment but that is all. That is the only occasion I can think and I've been reading the things quite a few years now.
That is, I came across a number of them through the years where passport numbers and other personal data were published. I thought little of them, although data issues arise.
However, recently someone told me about one particular case, within the last year, a reasonably well reported one at the time, where there is published a credit card number, various national insurance numbers, UK national ID numbers, Irish passport numbers, and a mobile phone number. They also showed me a decision of the Data Protection Commissioner to the effect that no data protection issue arises since that is a court judgement.
Now, DP laws apply to the courts service, but it is important to remember that judges are independent of the courts service, they are independent office holders in their own right. If the courts service ceased to exist, judges would still preside over trials and issue judgements, which they do independently.
So is that where the Data Protection Commissioner is coming from? Can the state never legislate to constrain what a Judge may say in his judgement?0 -
Minister for Justice and Equality -v- Connolly [2012] IEHC 575
This judgment concerns the criteria needed for a European Arrest Warrant. I believe it may be relevant to the discussion.0 -
It is not sufficient for the disclosure to be "relevant", the disclosure must be "necessary".NamelessPhil wrote: »Minister for Justice and Equality -v- Connolly [2012] IEHC 575
This judgment concerns the criteria needed for a European Arrest Warrant. I believe it may be relevant to the discussion.
It is going to be hard to convince anyone that disclosure of a credit card number, Irish passport numbers, and other ID numbers were "necessary" in this case.
Instead, it seems far more likely that despite what comes across in the DPAs, the DPAs are always, totally non-applicable to court judgements. That is the only logical conclusion that can be drawn; that S. 2A sub-ss. (c) and (d) are fine in principle, but completely useless in fact. They are completely impotent, and might as well have been left out, so far as the judiciary are concerned.0 -
Cody Pomeray wrote: »It is not sufficient for the disclosure to be "relevant", the disclosure must be "necessary".
You are misinterpreting my syntax. The "relevant' refers to the judgment itself not to its contents.
There is another judgment on the courts website, Director of Public Prosecutions -v- Dundon [2013] IESPC 1. This judgment also contains a mobile phone number but I doubt if anyone will try to call that number.0 -
Cody Pomeray wrote: »It is not sufficient for the disclosure to be "relevant", the disclosure must be "necessary".
It is going to be hard to convince anyone that disclosure of a credit card number, Irish passport numbers, and other ID numbers were "necessary" in this case.
Instead, it seems far more likely that despite what comes across in the DPAs, the DPAs are always, totally non-applicable to court judgements. That is the only logical conclusion that can be drawn; that S. 2A sub-ss. (c) and (d) are fine in principle, but completely useless in fact. They are completely impotent, and might as well have been left out, so far as the judiciary are concerned.
I can understand if the judiciary have been left out why, it would give one organ of Goverenment a method to censor another. So the Judges must be allowed free reign to write judgements as they wish.0 -
So, judges can do copyright infringement, incitement, breach the OSA, and maybe a bit of blasphemy?0
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So, judges can do copyright infringement, incitement, breach the OSA, and maybe a bit of blasphemy?
Would be an interesting thing if any judge in a judgement or in a hearing did any of the above. I have know counsel and judges to infringe on copyright, but usually credited, a well know SC is known for reading whole chapters of books to jury's, never seen any of the rest either in court or in a judgement. My own opinion if any serious breach was contained in a judgement then it could cause a constitutional issue my own opinion but open to other ideas is that the only remedy would be impeachment.
In relation to the OP spoke to a friend today who came across the very issue. His client was a EU national married to non EU national, the non EU national had a JR in the Asylum list, certain things had been put on affidavit about the EU wife and appeared in the judgement. The EU spouse took issue with her name being all over the judgement, so a letter of complaint was sent to the Courts Service, who redacted the name, according to him the judgement as delivered orally can not be attacked for breach of Data Protection, but the written unpublished or published judgement can in fact come under scrutiny. Hence I think why I have recently began to see stamps with no redaction needed, or no further redaction needed.0 -
A judgement delivered orally, without the approved judgement being circulated, ought only be considered a draft judgement. It has always been the case that counsel may make known their concerns about some aspect of a judgement, and the judge will take their concerns into account, or may even re-open the hearing where the concerns pertain to some serious omissions of fact.In relation to the OP spoke to a friend today who came across the very issue. His client was a EU national married to non EU national, the non EU national had a JR in the Asylum list, certain things had been put on affidavit about the EU wife and appeared in the judgement. The EU spouse took issue with her name being all over the judgement, so a letter of complaint was sent to the Courts Service, who redacted the name, according to him the judgement as delivered orally can not be attacked for breach of Data Protection, but the written unpublished or published judgement can in fact come under scrutiny. Hence I think why I have recently began to see stamps with no redaction needed, or no further redaction needed.
But in the case you outline, I suspect the judge was being courteous. I do not believe, barring any constitutional obstacles, that the judge was bound to edit his judgement to protect the applicant's statutory rights, nor that the DPAs have any force.0 -
It depends. Constitutional issues arise. But with that, the question of standing arises. The D.P Commissioner can open an investigation into data processing breaches on behalf of someone who wishes to remain anonymous, or even on behalf of someone who hasn't even made a complaint. But he cannot take a constitutional action on behalf of the putative third person. The same applies to someone complaining that a judge is blaspheming.So, judges can do copyright infringement, incitement, breach the OSA, and maybe a bit of blasphemy?
So to return to data protection, yes an applicant may challenge a judge for having breached his constitutional right to privacy, etc, but the test is stricter and the applicant risks aggravating his own loss of privacy, even if successful.
In effect, this shortfall in the law gives a wide scope to judges, perhaps too wide.0 -
Cody Pomeray wrote: »A judgement delivered orally, without the approved judgement being circulated, ought only be considered a draft judgement. It has always been the case that counsel may make known their concerns about some aspect of a judgement, and the judge will take their concerns into account, or may even re-open the hearing where the concerns pertain to some serious omissions of fact.
But in the case you outline, I suspect the judge was being courteous. I do not believe, barring any constitutional obstacles, that the judge was bound to edit his judgement to protect the applicant's statutory rights, nor that the DPAs have any force.
That was the point the other counsel was making the judgement delivered would not be effected, but his view is that the printed judgement is produced by the Courts Service. Again I point out that the judgement as produced by court service have a no need for redaction stamp, I have done a quick look through justis and from what I can see such statement "no need for (further) redaction" has been appearing since 2010.
Also the complaint was not made to the judge but only to the courts service, the judgement had not been altered only the public record of the judgement parts had been redacted.0 -
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Cody Pomeray wrote: »It depends. Constitutional issues arise. But with that, the question of standing arises. The D.P Commissioner can open an investigation into data processing breaches on behalf of someone who wishes to remain anonymous, or even on behalf of someone who hasn't even made a complaint. But he cannot take a constitutional action on behalf of the putative third person. The same applies to someone complaining that a judge is blaspheming.
So to return to data protection, yes an applicant may challenge a judge for having breached his constitutional right to privacy, etc, but the test is stricter and the applicant risks aggravating his own loss of privacy, even if successful.
In effect, this shortfall in the law gives a wide scope to judges, perhaps too wide.
I really don't see an issue, I have heard of no challenge to a judge for breach of DP I'm not even sure if same could be upheld for a variety of reasons.
I have given an example of a third party not part of the case was accommodated in that the public record of the judgement was redacted. So from what I can see the courts service do redact judgements otherwise why put it on judgements, they do on request redact judgements so they seem to take notice of data privacy.0 -
The latter is something I would disagree with. A written judgement is certainly processed by the courts Service, but at that point it is already a public document, and they are merely copying and republishing it, presumably in its original form.That was the point the other counsel was making the judgement delivered would not be effected, but his view is that the printed judgement is produced by the Courts Service.
The courts service may be free to redact, just the same as Westlaw or Justis may redact a document. But it would be a redundant exercise. A court judgement is a public record, and so any unredacted copy (for example, in the hands of the parties) may be freely disseminated, barring any judicial direction stating otherwise.
Regrettably, as far as I can see, this has nothing to do with the Courts Service. The Court Service do not 'own' the judgements they publish; those judgements are public documents regardless of what the courts service choose to do with them.
A judge is not an employee of the Courts Service, he is an independent office holder in his own right, with the power to create public documents.
This reduces the Courts Service to the status of Westlaw and Justis, when it comes to processing court judgements.
I'm not sure where that direction emanates from, I would assume it comes from the judge. But I cannot see anything in this observation which suggests that the judge, or the courts service, is statutorily bound to make such directions.Again I point out that the judgement as produced by court service have a no need for redaction stamp, I have done a quick look through justis and from what I can see such statement "no need for (further) redaction" has been appearing since 2010.
The courts service may choose to redact, just like westlaw or justis might, but if that is all that has happened, then the original document should still carry the weight of being a public record, and open to circulation, barring any other direction.Also the complaint was not made to the judge but only to the courts service, the judgement had not been altered only the public record of the judgement parts had been redacted.0 -
Cody Pomeray wrote: »The latter is something I would disagree with. A written judgement is certainly processed by the courts Service, but at that point it is already a public document, and they are merely copying and republishing it, presumably in its original form.
The courts service may be free to redact, just the same as Westlaw or Justis may redact a document. But it would be a redundant exercise. A court judgement is a public record, and so any unredacted copy (for example, in the hands of the parties) may be freely disseminated, barring any judicial direction stating otherwise.
Regrettably, as far as I can see, this has nothing to do with the Courts Service. The Court Service do not 'own' the judgements they publish; those judgements are public documents regardless of what the courts service choose to do with them.
This reduces the Courts Service to the status of Westlaw and Justis, when it comes to processing court judgements.
I'm not sure where that direction emanates from, I would assume it comes from the judge. But I cannot see anything in this observation which suggests that the judge, or the courts service, is statutorily bound to make such directions.
The courts service may choose to redact, just like westlaw or justis might, but if that is all that has happened, then the original document should still carry the weight of being a public record, and open to circulation, barring any other direction.
And as I said in my very first post I do not think a judge should be bound by DP law when giving a judgement as that could in my opinion lead to an external body being able to censor a judgement. If a judge has to worry about Data Protection in what he says or writes what then about parties to a case I have never considered DP when drafting an affidavit or asking questions of a witness nor should I.
http://www.courts.ie/Courts.ie/library3.nsf/(WebFiles)/DA0F983F9A93EDBB8025743C004C56FD/$FILE/Courts%20Service%20Data%20Protection%20Policy.pdf
Seems to saw at page 8 "Description of data held by the Courts Service which contains personal data registered on the Data Protection Commissioner’s website" one of the listed types of documents, "Higher Court judgements"
Seems to back up what my friend said the judgement as delivered is free from DP issues, but any permanent record of such judgement is not. If DP applied to judges giving judgement, it would apply to counsel or solicitors in the information they put before the court and on and on the courts would become unworkable.0 -
I don't think many people will have considered it, and understandably so.I have never considered DP when drafting an affidavit or asking questions of a witness nor should I.
Nevertheless, whereas I think the DPAs can never apply to judges in the course of their judgements, they certainly do apply to counsel. Only information which is bona fide deemed "necessary" in the interests of justice, as per S. 2A of the DPAs, ought to be included.
Say you are representing one Jospehone Murphy in a consultative case stated (drink driving), and you lawfully have in your possession a number of her personal details. You couldn't expect to read Josephine Murphy's bank details, credit card number, and Josephine's recent positive chlamydia results into the court record. That, among other things, would put you in breach of the DPAs. Lawyers are not exempt, but judges seem to be.
This did not arise for counsel in Connolly, as the court needed to be satisfied that the person before the court was the person being prosecuted, and the affidavits were necessary.0 -
Cody Pomeray wrote: »I don't think many people will have considered it, and understandably so.
Nevertheless, whereas I think the DPAs can never apply to judges in the course of their judgements, they certainly do apply to counsel. Only information which is bona fide deemed "necessary" in the interests of justice, as per S. 2A of the DPAs, ought to be included.
Say you are representing one Jospehone Murphy in a consultative case stated (drink driving), and you lawfully have in your possession a number of her personal details. You couldn't expect to read Josephine Murphy's bank details, credit card number, and Josephine's recent positive chlamydia results into the court record. That, among other things, would put you in breach of the DPAs. Lawyers are not exempt, but judges seem to be.
This did not arise for counsel in Connolly, as the court needed to be satisfied that the person before the court was the person being prosecuted, and the affidavits were necessary.
I have never seen counsel accused of a breach, nor could I see it, remember while counsel draft any affidavit it is the affidavit of the person who signs it. I can imagine that such information if contained in affidavit would be there for a reason, say in your case stated the issue was would certain medication effect the result of the drink driving sample, if Ms. Murphy was on medication such information may have to be put before the court and her positive chlamydia result may be very important, also there may be need for credit card number to show she purchased the medication and bank details may be required to show payment to doctor for lab test results, PPS number may also be required to link her to the test result and or treatment. Again I would be very worried if I had to consider DP if I'm fighting a EAW, I have seen some very personal information put before the court and correctly so, if any barrister put unnecessary information before the court I am unaware of any sanction from either DP or the Bar Council.0 -
Poor Mrs Murphy. Chlamydia is a dose (so I've heard).0
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Cody Pomeray wrote: »Poor Mrs Murphy. Chlamydia is a dose (so I've heard).
Well it's not so bad if it gets her off a drink driving charge lol. Did win two cases based on Gastro-oesophageal reflux disease, but not yet have a win based on a STI.0
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