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In a decision made available on the courts website on 8th August 2012, the High Court dismissed an appeal by Dublin Bus against a circuit court order requiring it to release CCTV footage to an individual who brought a personal injury claim against Dublin Bus in relation to an alleged fall whilst a passenger.

The appeal arose on a point of law from a decision of the Circuit Court made on 5th July 2011 in which Judge Linnane upheld a decision of the Data Protection Commissioner to issue an enforcement notice, requiring the appellant to provide a copy of the CCTV footage to Ms. Margaret McGarr who on 3rd October 2008 allegedly fell on Dublin Bus.

On 19th October 2009 Ms. McGarr commenced personal injury proceedings and her solicitors attended at the appellant’s (Dublin Bus) offices on 29th January 2010 to view the footage. On 12th February 2010 an access request pursuant to Section 4 of the Data Protection Acts was made seeking copies of any information including video records. On 16th February 2010 the access request was rejected on the grounds that such information was prepared in anticipation of potential litigation and was as such privileged. On 18th May 2010 the Data Protection Commissioner notified the appellant that they were commencing an investigation and ultimately their decision was upheld by the Circuit Court.

In the appellant’s submission in the High Court, it contended inter alia that any attempt to seek disclosure outside of the High Court was a mistaken and inappropriate attempt to usurp the function of the High Court and it referred to the case of Murphy v Corporation of Dublin [1972] IR 215 where the Supreme Court unanimously held that it was the courts who retained sole power to order discovery between the parties. The appellant further contended that the role of the Data Protection Commissioner should have no role in the conduct of litigation.

The Respondent stated that if the drafters of the legislation wished to impose limitations on the right of access to personal data in circumstances where litigation has been instituted then they would have done so expressly.

In its judgement Justice John Hedigan noted the appellant did not, as provided for in Section 26(3)(b), set out the point of law it wished to appeal. The Court noted that simply stating that you are appealing the whole of the judgement does not amount to a valid appeal on a point of law.

The Court stated that the appellant was seeking to carve out a new exception in the Acts to the effect that whenever a data requester has instituted litigation against a data controller he or she is precluded from making a data access request under the Acts.

Justice Hedigan concluded by stating that the existence of proceedings between a data requester and a data controller does not preclude the data requester from making an access request under the Act nor justifies the data controller in refusing the request. The appeal was dismissed.

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