Commissioner: Meeting with Minister after critical Public Services Card report was 'out of the question'

The Data Protection Commissioner has said that it would have been “wholly inappropriate” for her to meet with the Government after delivering her highly adversarial report into the Public Services Card.

She also remarked that she ultimately expects the State to be forced to comply with her findings.

Helen Dixon, in appearing before the Oireachtas Public Accounts Committee, said that the meeting requested by Social Protection Minister Regina Doherty - suggested after the Minister confirmed she would be disputing the report’s findings - would have been “out of the question” given it was clear the Department would not be complying with her rulings.

Ms Dixon delivered her report, with seven of eight findings adversarial to the Department, on August 15. The report was finally published last week.

In it, the Commissioner mandated that the PSC is illegal when used to process data for services other than welfare. She also dictated that the State must delete 3.2 million historical records it holds on cardholders, and said that the Department had fallen far short of the standards of transparency that would be expected in such a project.

Today, Ms Dixon said that the Department had cooperated with her investigation, but was “clearly resistant to the legal analysis” contained therein.

Ms Dixon said that an enforcement notice regarding her findings is being prepared and will issue “in the next number of weeks”. She said the fact the Commission had deferred the issuance of such a notice is “absolutely routine”, and had happened because Social Protection had been “invited” to voluntarily comply with her findings.

A number of other departments, including the Department of Foreign Affairs and the Department of Justice, have now stepped back from having the PSC as a mandatory requirement for accessing their services.

One of the remaining outliers is the Department of Children and Youth Affairs, which confirmed to the Irish Examiner this week that a PSC will be required in order to access the new National Childcare Scheme when it goes live in late October.

Today, Ms Dixon described that fact as being “totally at odds” with the findings contained in her report.

She agreed that the “nub” of the dispute over interpretation of the law between her and Social Protection amounted to 23 words contained in the Social Welfare Consolidation Act of 2005, they being: “A person shall produce his or her Public Service Card at the request of a specified body for the purposes of a transaction.”

“Ultimately we are confident in our findings, we’re confident the investigation was fairly conducted, and we stand over it, so I would imagine they (the Department) will be required to comply,” she said.

The Department of Justice, which was present at the hearing as the body with responsibility for the DPC’s budget, was invited to comment as to whether or not it shared Social Protection’s opinion that the PSC report was in error.

Labour TD Alan Kelly asked principal officer Richard Fallon whether his (Kelly’s) view that Justice does not accept the report is accurate.

“You’re entitled to your view. The PSC is no longer being required to make a citizenship application, so we are responding to the report,” Fallon replied.

Helen Dixon.

The DPC was granted far increased powers when the EU’s General Data Protection Regulation (GDPR) went live in May of 2018.

Asked by Kelly whether or not biometric data is captured during the PSC process, a key topic which will be covered by a separate report into the card to be published later this year, Ms Dixon said that the Department is “generating, and storing, and processing biometric data” per the definition of such data under GDPR.

She said that the fact that the Department is to challenge her findings is “unusual”. This will be the third time the Commissioner has been challenged by a State body, the second of which was also Social Protection, which appealed and judicially reviewed a ruling on child benefit data gathering in July of this year.

“It’s unusual but the right of appeal does apply to the public as well as the private sector,” Ms Dixon said.