Inquiry concerning the Department of Health - June 2023
Date of Decision: 16 June 2023
The Data Protection Commission (DPC) has completed an inquiry into certain aspects of the Department of Health’s processing of personal data in 29 litigation files. The inquiry was commenced following public allegations in 2021 that the Department had unlawfully collected and processed personal data about plaintiffs and their families in special educational needs litigation.
On the files examined, the DPC found evidence that the Department sought information from the HSE about services that were provided to plaintiffs and their families. The Department also included broadly worded questions asking the HSE to share “any other issues HSE feels worth mentioning.” This broad question resulted in the provision of private information about the lives of plaintiffs and their families.
The Department told the DPC that they processed this personal data for the purposes of determining whether an approach should be made to the plaintiff to seek to settle the case. The DPC considered whether it complied with data protection law for the Department to process the personal data for this reason. Under sections 41 and 47 of the Data Protection Act 2018, controllers can process personal data where it is necessary to provide or obtain legal advice or in the context of legal proceedings. In order to determine whether personal data had been lawfully processed by the Department under this provision, the DPC applied the EU law principles of necessity and proportionality.
The DPC found that the Department did not infringe data protection law by seeking information about the services that were being provided to plaintiffs in relation to cases where there was open litigation. However, the DPC found that the Department did infringe data protection law by asking broad questions that resulted in the provision of sensitive information about the private lives of plaintiffs and their families. This information included details about plaintiff’s jobs and living circumstances, information about their parents’ marital difficulties and in one case, information received directly from a doctor about the services that were being provided to the plaintiff.
The DPC found that the processing of information obtained in response to broad scoping questions sent to the HSE for the purposes of seeking to settle a case was excessive and disproportionate to the aims pursued by the Department and that the processing for this reason was not necessary for the purposes of litigation. Therefore the DPC found that there was no lawful basis for this processing in the files examined, and that the Department had infringed the principle of data minimisation by processing this personal data.
Having regard to the relevant factors under the GDPR and the fining cap for public authorities under the Data Protection Act 2018, the DPC decided to impose a fine of €22,500 for these infringements. The DPC also imposed a ban on further processing the sensitive data in the files examined for the purposes of determining an appropriate time to settle a case.
During the inquiry, the DPC found that the Department retained other information that it had collected from the HSE and that it had received from other government departments on its files. The DPC did not find evidence on the 29 litigation files examined that the Department had proactively sought information from other government departments. The DPC also did not find an infringement of data protection law arising from the fact that the Department stored this information for the purposes of defending litigation. The files relate to active litigation and the DPC recognised that there are a number of obligations that require defendants to retain documents that relate to open litigation.
The DPC also found that the Department had infringed the requirements to process personal data securely. The inquiry found that the Department ought to have ensured that better internal access restrictions were in place in relation to the files.
In addition to the fine and ban on processing outlined above, a reprimand was imposed for all of the infringements.
For more information, you can download the full decision at this link: Inquiry concerning the Department of Health - June 2023 (PDF, 1.35mb).