Lobbying the Data Protection Commissioner

Should the Data Protection Commissioner be transparent about lobbying communications she receives?

That is a question we are asking the Information Commissioner to answer in an application we filed last week for a review of a decision of the Office of the Data Protection Commissioner to refuse to grant access to records relating to communications with lobbyists representing large multinational companies and trade associations.

Since May 2015 lobbyists must register and provide information about activities where they communicate with certain public officials – including the Data Protection Commissioner – in relation to development of public policy, preparation of amendment of legislation and award of financial supports involving public funds. The legislation is not intended to prevent or inhibit lobbying, which is an essential part of the democratic process, but to make it more transparent.

We noticed that the Data Protection Commissioner has been lobbied on quite a few occasions by companies such as Microsoft, Yahoo and Accenture and trade bodies such as IBEC and the American Chamber of Commerce. In one instance the lobbying took place in the Irish Embassy in Washington DC and another purported to be “To ensure Ireland remains the global location of choice for US investment”.

Wanting to learn more about this lobbying we filed an FOI request with the Data Protection Commissioner’s Office on 2 September 2016 looking for comprehensive information about each of eight separate lobbying activities.

It is worth recalling that to protect the confidentiality of the Data Protection Commissioner’s statutory functions her office is not fully subject to FOI. Only records relating to the “general administration” of the office are accessible.

Our request was refused on the basis that it did not relate to the general administration of the office since the Commissioner was lobbied about data protection matters. We stressed that communication with a person because she holds public office is not necessarily the same as communications with her pursuant to a statutory functions of that office.

We take the view that, by definition, communications with the Data Protection Commissioner exercising her statutory functions is not lobbying and conversely communications disclosed on the lobbying register must be within scope of FOI.

The Data Protection Commissioner sees it differently. She thinks that lobbying communications – no matter the circumstances – come within her statutory functions and therefore must be protected with such a high degree of confidentiality that the right of access under FOI cannot apply.

The Irish Data Protection Commissioner, as the single European regulator of many of the world’s largest internet companies, plays a pivotal and crucial role in the supervision of the processing of personal information in the European Union. As a matter of principle we believe that lobbying communications between her and vested interests should be transparent to members of the public.

We have asked the Information Commissioner to rule that records of lobbying communication with the Data Protection Commissioner are accessible under FOI and to order her to process our request.

We will update readers on the case as it progresses.

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