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In the matter of the General Data Protection Regulation

DPC Case Reference: IN-19-7-2

In the matter of Irish Credit Bureau DAC

Decision of the Data Protection Commission made pursuant to Section 111 of the Data Protection Act
2018

Further to an own-volition inquiry commenced pursuant to Section 110 of the Data Protection Act 2018

DECISION

Decision-Maker for the Commission:

Helen Dixon
Commissioner for Data Protection

23 March 2021

Data Protection Commission
2 Fitzwilliam Square South
Dublin 2, Ireland

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Contents
1. Introduction .................................................................................................................................... 3
2. Legal Framework for the Inquiry and the Decision......................................................................... 3
i. Legal Basis for the Inquiry ........................................................................................................... 3
ii. Legal Basis for the Decision......................................................................................................... 4
3. Factual Background ......................................................................................................................... 4
4. Scope of the Inquiry ........................................................................................................................ 9
5. Issues for Determination................................................................................................................. 9
6. Issue 1: Article 25(1) of the GDPR ................................................................................................... 9
i. Findings ..................................................................................................................................... 15
7. Issue 2: Articles 5(2) and 24(1) of the GDPR ................................................................................. 16
i. Finding ....................................................................................................................................... 18
8. Issue 3: Article 26(1) of the GDPR ................................................................................................. 19
ii. Finding ....................................................................................................................................... 21
9. Decision on Corrective Powers ..................................................................................................... 21
A. Reprimand................................................................................................................................. 22
B. Administrative Fine ................................................................................................................... 23
i. Whether Each Infringement Warrants an Administrative Fine ............................................ 23
ii. The Permitted Range ............................................................................................................ 36
iii. Calculating the Administrative Fine ...................................................................................... 37
10. Right of Appeal.......................................................................................................................... 39
Appendix: Schedule of Materials Considered for the Purposes of this Decision ............................... 40

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1. Introduction
1.1 This document (“the Decision”) is a decision made by the Data Protection Commission (“the
DPC”) in accordance with Section 111 of the Data Protection Act 2018 (“the 2018 Act”). I
make this Decision having considered the information obtained in the separate own volition
inquiry (“the Inquiry”) conducted by a case officer of the DPC (“the Case Officer”) pursuant
to Section 110 of the 2018 Act. The Case Officer provided the Irish Credit Bureau DAC (“the
ICB”) with the Draft Inquiry Report and the Final Inquiry Report.

1.2 The ICB was provided with the Draft Decision on this Inquiry on 2 February 2021 to give it a
final opportunity to make submissions. This Decision is being provided to the ICB pursuant to
Section 116(1)(a) of the 2018 Act in order to give the ICB notice of the Decision, the reasons
for it, and the corrective powers that I have decided to exercise.

1.3 This Decision contains corrective powers under Section 115 of the 2018 Act and Article 58(2)
of the General Data Protection Regulation (“the GDPR”) arising from the infringements that
have been identified herein. In this regard, the ICB is required to comply with these corrective
powers, and it is open to this office to serve an enforcement notice on the ICB in accordance
with Section 133 of the 2018 Act.

2. Legal Framework for the Inquiry and the Decision

i. Legal Basis for the Inquiry

2.1 The GDPR is the legal regime covering the processing of personal data in the European Union.
As a regulation, the GDPR is directly applicable in EU member states. The 2018 Act gives the
GDPR further effect in Irish law. As stated above, the DPC commenced the Inquiry pursuant
to Section 110 of the 2018 Act. By way of background in this regard, under Part 6 of the 2018
Act, the DPC has the power to commence an inquiry on several bases, including on foot of a
complaint, or of its own volition.

2.2 Section 110(1) of the 2018 Act provides that the DPC may, for the purpose of Section
109(5)(e) or Section 113(2) of the 2018 Act, or of its own volition, cause such inquiry as it
thinks fit to be conducted, in order to ascertain whether an infringement has occurred or is
occurring of the GDPR or a provision of the 2018 Act, or regulation under the Act that gives
further effect to the GDPR. Section 110(2) of the 2018 Act provides that the DPC may, for
the purposes of Section 110(1), where it considers it appropriate to do so, cause any of its
powers under Chapter 4 of Part 6 of the 2018 Act (excluding Section 135 of the 2018 Act) to
be exercised and / or cause an investigation under Chapter 5 of Part 6 of the 2018 Act to be
carried out.

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ii. Legal Basis for the Decision

2.3 The decision-making process for this Inquiry is provided for under Section 111 of the 2018
Act, and requires that the DPC must consider the information obtained during the Inquiry; to
decide whether an infringement is occurring or has occurred; and if so, to decide on the
corrective powers, if any, to be exercised. As the sole member of the Commission, I perform
this function in my role as the decision-maker in the DPC. In so doing, I am required to carry
out an independent assessment of all of the materials provided to me by the Case Officer as
well as any other materials that the ICB has furnished to me, and any other materials that I
consider relevant, in the course of the decision-making process.

2.4 The Final Inquiry Report was transmitted to me on 10 September 2020, together with the
Case Officer’s file, containing copies of all correspondence exchanged between the Case
Officer and the ICB; and copies of all submissions made by the ICB, including the submissions
made by the ICB in respect of the Draft Inquiry Report. The ICB made submissions on the
Draft Decision on 23 February 2021. A full schedule of all documentation considered by me
for the purpose of this Decision is appended hereto. I issued a letter to the ICB on 20
November 2020 to notify it of the commencement of the decision-making process.

2.5 Having reviewed the Final Inquiry Report, and the other materials provided to me by the Case
Officer, including the submissions made by the ICB, I was satisfied that the Inquiry was
correctly conducted and that fair procedures were followed throughout. This includes, but is
not limited to, notifications to the controller and opportunities for the controller to comment
on the Draft Inquiry Report before the Case Officer submitted it to me as decision-maker.

3. Factual Background
3.1 The ICB is a credit reference agency that maintains a database on the performance of credit
agreements between financial institutions and borrowers (“the ICB database”).
Approximately 280 financial institutions are members of the ICB1 (“ICB members”) and those
members register information on the performance of credit agreements with the ICB, usually
on a monthly basis. ICB members can access the information on the ICB database by making
enquiries with the ICB. The ICB also uses this information to create credit reports and credit
scores in respect of borrowers. This information assists the financial institutions in making
decisions on applications for credit. The credit reports form a part of the process used by
financial institutions to make decisions on applications for credit. The ICB submitted that
other factors play a significant role in lending decisions and that “In ICB’s experience, the
same data provided from ICB can lead to different lending decisions being taken by different
lenders, as they have different lending criteria and varying risk appetites.”2

1
ICB “Observations & Clarifications identified in the Draft Inquiry Report (IN-19-7-2)”, dated 20 August 2020.
2
ICB submissions on the Draft Decision, dated 23 February 2021, at page 6.

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3.2 ICB members are contractually obliged to update the ICB database with new data on loans.
ICB members submit approximately 3.5 million monthly updates. The ICB uses an automated
system for processing updates to its database. However, the ICB manually processes payment
profile updates3.

3.3

The ICB implemented a filter on completed accounts

This meant that when a borrower fully repaid and completed a loan,
the record of that loan on the database was un-editable and protected from erroneous
updates.

3.4 On 28 June 2018, the ICB implemented a code change in order to amend how it updates a
subset of payment profiles on the database (“the code change”).

The intention of the change was to improve the
accuracy of the database by allowing those accounts to accept updates where the account
holder made subsequent payments.

3.5 The code change contained a technical error. This error allowed updates to completed
accounts and removed the filter that previously protected those accounts from erroneous
updates.

3
The “ICB Members Technical Manual”, dated July 2015, at page 24.
4
The ICB provided a full list of the profile indicators was in the “ICB Members Technical Manual”, dated July
2015, at page 43.
5
Note of meeting between the DPC and the ICB on 26 October 2018 at 11am, appendix C.1 to the Inquiry
Report at page 208.

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3.6 Between 28 June 2018 and 30 August 2018, the ICB database inaccurately updated the
records of 15,120 closed accounts resulting from the technical error (“the personal data
breach”). The vast majority of the inaccurate updates resulted in an incorrect closure date
being recorded on the ICB database to state that the closed account had closed more recently
that it actually had. 18 account records had an incorrect balance applied, but none of those
records were disclosed to ICB members. All of the affected accounts remained designated as
completed on the system. 98.12% of the 15,120 account records were closed credit card
accounts. The remainder consisted of closed mortgage, personal loans and asset finance loan
accounts.

3.7 Of the 15,120 accounts affected, the ICB disclosed 1,062 inaccurate account records to its
members or data subjects before fixing the issue. This figure includes 118 inaccurate credit
reports disclosed directly to data subjects. All of the inaccurate account records disclosed to
the ICB members stated that the accounts had been closed more recently than they actually
had been, but none misstated that a balance was outstanding on the accounts.

3.8 The ICB became aware of a potential issue on 27 August 2018 when an ICB member notified
it that the finalised date on a customer credit card record had erroneously changed. This
change also resulted in a new credit score for the customer. The ICB investigated this matter
and determined on 29 August 2018 that the code change caused the error by removing the
filters on the ICB database. On 31 August 2018, the ICB fixed the validation rules that allowed
the incorrect changes to closed accounts and corrected the affected data. The ICB notified 3
ICB members, whose updates accounted for 98% of incorrect account records, of the
personal data breach on 31 August 2018. The ICB also notified the DPC of the personal data
breach on 31 August 2018.

3.9 Following the notification of the personal data breach, the ICB cooperated with the DPC’s
assessment of the personal data breach. The ICB submitted a number of documents in
response to the DPC’s queries, as included in the appendix hereto, and I have had due regard
to those documents in making this Decision. The ICB notified the remaining 20 of its
members, whose updates accounted for 2% of incorrect account records, of the personal
data breach on 4 and 5 September 2018. By 21 September 2018, the ICB had contacted the
130 of its members, who had not provided incorrect updates during the breach period but
had accessed some of the 15,120 inaccurate records, to notify them of the breach and to
provide them with encrypted copies of the inaccurate data and the restored data. The ICB
also asked those members to review their lending decisions in the period and, if necessary,
to contact any data subjects whose credit application may have been adversely affected by
the inaccurate data. The ICB requested that those members confirm to ICB if it had been
necessary to contact any data subjects. The ICB submitted that “ICB has not been advised by
any member that any of this population of data subjects had an application for credit declined
because of the incorrect closure date on a closed account.”6

6
ICB submissions on the Draft Decision, dated 23 February 2021, at page 10.

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3.10 On 24 September 2018, the ICB notified each of the data subjects who had directly requested
the 118 credit reports from ICB of the personal data breach, provided them with a new credit
report, and suggested that they contact any lenders to whom they had made credit
applications during the breach period if necessary.

3.11 On 19 July 2019, the DPC informed the ICB of the commencement of the Inquiry by way of a
Notice of Commencement of Inquiry (“the Notice”). The DPC made the decision to
commence the Inquiry having regard to the circumstances of the personal data breach. The
Notice set out the scope and legal basis of the Inquiry. The Notice informed the ICB that the
Inquiry would examine whether or not the ICB had discharged its obligations in connection
with the subject matter of the breach and determine whether or not any provision(s) of the
2018 Act and/or the GDPR had been contravened by the ICB in that context. The Notice set
out that the Inquiry would seek to establish the facts as they relate to the subject of the
Inquiry. The Notice also posed a number of queries to the ICB and sought relevant
documentation that informed those responses.

3.12 The ICB responded to the Notice on 15 August 2019 and answered the queries. The ICB
provided an overview of its database and submitted the latest version of the ICB Members
Technical Manual, which came into effect from August 2018. A previous version of the
Technical Manual, dated July 2015, was in effect up until that point and is, therefore, also
relevant to the period under consideration in this Decision. The ICB also outlined that it
achieved the ISO27001 certification in October 2012 and that it maintains its certification
with bi-annual audits from Certification Europe. The ICB also submitted a number of
documents relevant to the Inquiry.

3.13 On 19 November 2019, the Case Officer wrote to the ICB with a number of follow-up queries
in respect of the information provided by the ICB. The ICB responded to these queries on 3
December 2019 and submitted a range of further documents. The ICB clarified that it had
assessed the risk of the code change as “Medium” on the change request because the change
intended to affect a relatively small number of records
The ICB stated that it had no further documentation in relation to the change
process or records beyond the change request and the fix already disclosed.

3.14 On 11 March 2020, the Case Officer wrote to the ICB seeking specific information on the
technical and organisational measures that were in place at the time of the personal data
breach to counter the risks with the forms of data processing at issue in the breach. The ICB
responded to the DPC’s request on 24 March 2020. The ICB also submitted that it did not test
for the condition that prevented updates to closed accounts because there was no reason to
specifically test for that condition. The ICB submitted that it fully logged all changes to the
database in journals as standard and that this gave the ICB the ability to trace, understand,
fix and recover fully within the 72-hour data breach notification period.

3.15 On 23 July 2020, the Case Officer issued the ICB with the Draft Inquiry Report and invited
submissions. The Draft Inquiry Report included the relevant facts as provisionally established

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by the Case Officer and the Case Officer’s provisional views on the issues within the scope of
the Inquiry.

3.16 On 20 August 2020, the ICB made submissions on the Draft Inquiry Report. The ICB outlined
remedial steps that it was in the process of taking in response to the personal data breach,
which included testing methodologies, DPIAs, and a new change control process in respect
of future changes to the ICB system. The ICB also submitted details of a data remediation
governance review aimed at improving its existing framework. The ICB’s technical working
group met almost weekly to review progress in strengthening ICB’s technical and
organisational measures. The submissions also made observations and clarifications on the
Draft Inquiry Report, which I have considered for the purposes of this Decision.

3.17 On 10 September 2020, the Case Officer completed the Final Inquiry Report and submitted it
to me as decision-maker. On 20 November 2020, I wrote to the ICB to notify it of the
commencement of the decision-making stage of the Inquiry. On 14 December 2020, I wrote
to the ICB requesting a copy of the “ICB ISO Policy document” referred to by the ICB during
the Inquiry. The ICB submitted a copy of this document, titled “A12 Operations Security”, on
16 December 2020. I provided the ICB my Draft Decision on 2 February 2021 and the ICB was
afforded the opportunity to make submissions on the proposed infringements that were
provisionally identified therein and the corrective powers that I proposed to exercise. On 23
February 2021, made submissions on the Draft Decision. I have had full regard to those
submissions and I have reached conclusions that infringements of data protection legislation
have occurred and that it is necessary to exercise certain corrective powers. Those
infringements and corrective powers are set out in this Decision.

3.18 In its submissions on the Draft Decision, the ICB outlined that during its remediation process
it created new policies and processes in relation to change control and testing, and updated
its existing policies and processes. The ICB had implemented 10 updated and newly created
policies/processes by mid-October 2020. Following my request on 14 December 2020, the
ICB provided me with one of these updated documents (“A12 Operations Security”).
However, in its submissions on the Draft Decision, the ICB submitted that:

“while highlighted in the Operations Security Policy, the remaining nine updated and
newly created policies/procedures were not specifically provided to the DPC. We
apologise for omitting these documents from the DPC review as it means that in
reaching the provisional views set out in the Draft Decision, unfortunately the DPC was
not aware of the full extent of the remediation actions on change control and testing
already implemented by ICB.”7

3.19 The ICB submitted that it conducted a further review and updates of all ICB policies and
processes in relation to change control and testing following receipt of the Draft Decision8.
This review resulted in further updates and newly created policies and processes. The ICB’s

7
ICB submissions on the Draft Decision, dated 23 February 2021, at page 14.
8
Ibid.

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submissions on the Draft Decision appended the original ICB change control and testing
policies, the change control and testing policies post 20 August 2020, and the change control
and testing policies post 2 February 2021. As outlined below, I have had due regard the ICB’s
full remediation process and the full suite of documents submitted in relation to the decision
on corrective powers in Part 9 of this Decision.

4. Scope of the Inquiry
4.1 The scope of the Inquiry, which was set out in the Notice of the Commencement of the Inquiry,
is to examine whether or not the ICB has discharged its obligations in connection with the
subject matter of the personal data breach and determine whether or not any provision(s) of
the 2018 Act and/or the GDPR have been contravened by the ICB in that context.

4.2 In this regard, the Notice expressly stated that the scope of the inquiry would include Articles
5, 24, 25(1), 26, and 28 of the GDPR. The Notice stated that the Inquiry would focus on the
areas of Data Protection Governance, Training and Awareness, Records Management,
Security of Personal Data, Data Sharing, Privacy Impact Assessments, and Records of
Processing Activities.

5. Issues for Determination
5.1 Having reviewed the Inquiry Report and the other relevant materials, I consider that the issues
in respect of which I must make a decision are:

(i) Whether the ICB complied with its obligation pursuant to Article 25(1) of the GDPR to
implement appropriate technical and organisational measures which are designed to
implement the principle of accuracy, provided for in Article 5(1)(d) of the GDPR, in
an effective manner;
(ii) Whether the ICB complied with its obligations, pursuant to Articles 5(2) and 24(1) of
the GDPR, to demonstrate compliance with the data protection principles and to
demonstrate that processing is performed in accordance with the GDPR; and
(iii) Whether the ICB, along with the ICB members, were obliged, pursuant to Article 26(1)
of the GDPR, to determine their respective responsibilities for compliance with the
GDPR by means of an arrangement between them.

6. Issue 1: Article 25(1) of the GDPR

6.1 Article 25(1) of the GDPR provides for data protection by design:

“Taking into account the state of the art, the cost of implementation and the nature,
scope, context and purposes of processing as well as the risks of varying likelihood and
severity for rights and freedoms of natural persons posed by the processing, the
controller shall, both at the time of the determination of the means for processing and

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at the time of the processing itself, implement appropriate technical and
organisational measures, such as pseudonymisation, which are designed to
implement data-protection principles, such as data minimisation, in an effective
manner and to integrate the necessary safeguards into the processing in order to meet
the requirements of this Regulation and protect the rights of data subjects.”

6.2 Article 5(1)(d) of the GDPR provides for the principle of accuracy, requiring that personal
data shall be:

“accurate and, where necessary, kept up to date; every reasonable step must be taken
to ensure that personal data that are inaccurate, having regard to the purposes for
which they are processed, are erased or rectified without delay (‘accuracy’)”

6.3 As outlined in further detail in Part 8 of this Decision, the ICB is the controller in respect of
the ICB database. Therefore, pursuant to Article 25(1), the ICB is obliged, both at the time of
the determination of the means for processing and at the time of the processing itself, to
implement appropriate technical and organisational measures to implement the data
protection principles, including the principle of accuracy provided in Article 5(1)(d). This must
include measures to address the risk of inaccurate personal data being stored or further
processed on the ICB database, and is not limited only to measures designed to rectify or
erase inaccurate data where it is processed. This obligation in Article 25(1) is scalable
depending on the particular circumstances of the processing undertaken and the risks
presented. Therefore, in determining whether the ICB has infringed Article 25(1), it is
necessary to determine which measures were appropriate at the time of the personal data
breach.

6.4 The ICB faces challenges in ensuring that the personal data it processes are accurate. The
ICB submitted that it takes data directly from its members and has limited opportunity to
adjudicate on the accuracy of that data9. In Huber v Bundesrepublik Deutschland10 the Court
of Justice of the European Union considered the lawful basis for a centralised register of
personal data. Various public bodies were authorised to enter data and information directly
in the register. The Court held that “As the authority entrusted with the management of the
[register], the Bundesamt is responsible for the accuracy of the data registered in it.”11 The
obligation in Article 25(1) applies to the controller of that database. Therefore, the ICB
cannot avoid its obligation under Article 25(1) simply because it relies on ICB members to
submit accurate personal data. However, the assessment of what constitutes “appropriate
technical and organisational measures” must have regard to the particular circumstances of
the processing. Therefore, in considering whether the ICB has infringed Article 25(1), I must
have had due regard to how the ICB relies on its members in respect of the accuracy of the
personal data.

9
ICB submissions on the Draft Inquiry Report, dated 20 August 2020, at page 2.
10
Case C‑524/06, Heinz Huber v Bundesrepublik Deutschland, judgment of 16 December 2008
(ECLI:EU:C:2008:724).
11
At paragraph 21.

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6.5 Article 25(1) also requires that the state of the art, the cost of implementation and the
nature, scope, context and purposes of processing must be taken into account when
implementing data protection by design. The controller must also consider the risks of
varying likelihood and severity for rights and freedoms of natural persons posed by the
processing.

6.6 Turning first to the nature, scope, context and purposes of the ICB’s processing of personal
data on its database, I consider that the nature of this processing is inherently sensitive. The
personal data concerns data subjects’ performance on credit agreements. Any mishandling
of this personal data, due to inaccuracy, unauthorised disclosure, or otherwise, may
seriously infringe the rights and freedoms of data subjects. The ICB relies on alphanumerical
sequences submitted by ICB members to update the personal data on the database. Errors
in these sequences can cause inaccuracy on the database, which, in turn, can result in
adverse consequences for credit applicants.

6.7 The scope of the processing on the ICB database is broad. The database records the
performance of credit agreements concerning the ICB members. Those members are
contractually obliged to provide regular updates to the ICB, resulting in 3.5 million monthly
updates. In 2018, the ICB database contained approximately 6.7 million account records (3.2
million open loans and 3.5 million closed loans). The ICB database contains other personal
data on account holders, such as their occupation, address, gender and date of birth.
Therefore, the database processes a significant quantity of personal data on each data
subject and it concerns a large number of data subjects.

6.8 The processing on the ICB database occurs in the context of various ICB members feeding
information into the centralised database and then accessing the database by making
enquiries as required. This context creates a greater risk that the ICB might process
inaccurate personal data because an error from any of the members could cause inaccuracy.
The ICB could then share this inaccurate personal data with other members. The ICB relies
on its members to submit accurate personal data. This context heightens the need for
specific technical and organisational measures to protect the accuracy the personal data
processed.

6.9 The purpose of the processing of personal data on the ICB database is to assist lenders in
assessing credit applications from potential borrowers. The personal data also enables the
ICB to produce credit reports and credit scores on data subjects. This, in turn, can lower the
cost of credit, enable faster decisions, and assist with fraud prevention. However, the
purpose of the processing is also linked to data subjects’ interests in being able to access
credit, and any inaccuracy is likely to adversely affect their rights and freedoms.

6.10 The risk to the rights and freedoms of natural persons posed by the processing on the ICB
database is assessed objectively by reference to the likelihood of that risk and its severity.
The processing creates the risk of ICB members submitting inaccurate personal data
regarding data subjects’ performance on credit agreements and of the ICB sharing that

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inaccurate personal data with other ICB members. Recital 76 of the GDPR provides guidance
as to how risk should be evaluated:

“The likelihood and severity of the risk to the rights and freedoms of the data subject
should be determined by reference to the nature, scope, context and purposes of the
processing. Risk should be evaluated on the basis of an objective assessment, by which
it is established whether data processing operations involve a risk or a high risk.”

6.11 The risk assessment must consider, first, the likelihood of inaccurate personal data on data
subject’s performance on credit agreements being processed by the ICB and, second, the
severity of that risk in respect of the rights and freedoms of the data subjects. These
objective assessments are made by reference to the nature, scope, context and purposes of
the processing as considered above.

6.12 I find that the likelihood of the risk of inaccurate personal data being processed on the ICB
database is high. I make this finding in light of the high number of ICB members who are
contractually obliged to provide updates to the database and how this results in 3.5 million
monthly updates.

6.13 I find that the severity of the risk to the rights and freedoms of natural persons flowing from
inaccurate processing of personal data on the ICB database is also high. In particular, I make
this finding in light of the sensitivity and purpose of the processing on the ICB database.
Inaccuracies are likely to influence ICB members’ decisions on the data subjects’ access to
credit. This is reflected in complaint C-18-10-11 received by the DPC, in which an ICB member
questioned a data subject’s mortgage application due to an error in a credit report resulting
from the personal data breach. It is also reflected in the credit report referred to by the ICB
member that made the ICB aware of the personal data breach, where ICB member noted
the error appeared to be informing the credit score.

6.14 The ICB was obliged to have regard to this high risk when determining which measures to
implement pursuant to Article 25(1). This high risk must also be considered against how the
ICB relies on its members to submit accurate personal data. However, as outlined above, this
does not relieve the ICB of its own obligation under Article 25(1) to implement appropriate
measures designed to implement the accuracy principle. Despite the challenges faced by the
ICB, it is clear that technical and organisational measures are available to reduce the risk of
it processing inaccurate personal data.

6.15 The ICB implemented a technical measure to prevent payment profile updates to closed
accounts by filtering such edits. By their very nature, payment profile updates to closed
accounts are likely to be inaccurate because the accounts had previously closed. Therefore,
such updates should ordinarily be avoided, save in exceptional circumstances, for example,
to correct an error previously recorded on the account. The ICB unintentionally removed this
measure on 28 June 2018 and re-implemented it on 30 August 2018. As a result, the ICB

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failed to erase or rectify a large quantity of inaccurate personal data submitted by its
members, and further processed some of this personal data by sharing it with other
members. In the circumstances, I find that this technical measure is an appropriate measure
that the ICB was obliged to implement pursuant to Article 25(1) of the GDPR. I accept that
the ICB accidentally removed the filter. However, in doing so, it infringed Article 25(1) for
just over 2 months in the circumstances.

6.16 The ICB used a change management process when implementing the code change. This
change management process was set out in the “ICB ISO Policy document”12. In its
submissions to the Case Officer on 15 August 2019, the ICB quoted the change management
process that was in place at the time of the code change as follows:

“ICB operates change management processes in relation to the following resources;
staff, business processes and all hardware and software related to the ICB Systems.
The following process shall be followed for each change required:
• the required change shall be discussed and documented with management;
• if the change impacts on personal data stored on the ICB database, then a Privacy
Impact Assessment (PIA) needs to be performed as per GDPR requirements. A
template can be found here:
http://icb-dc/GDPR/Shared%20Documents/Policies/PIA%20Template%20Draft.docx
• a costing plan shall be produced and discussed with management to justify
expenditure and obtain approval for the relevant expenditure;
• a change management document shall be produced with agreed by all relevant
parties;
• Implementation plans, where required, are produced and agreed by all relevant
parties to the change;
• Changes to the operational systems (where possible) shall be made outside of prime
service times and customers shall be given appropriate notice as defined in the
Service Level Agreement. An exception to this shall be when an emergency change is
required to rectify an issue that is causing disruption to the service. This emergency
change must be authorised a senior manager and the change implemented as soon
as can be arranged.
Changes shall be executed with at least 2 members of the technical team and will
include a back out plan to reverse the change as a contingency.”13

6.17 The ICB submitted that its change management process complied with the ISO27001
standard. The Organization for Stadardization (“ISO”) “Code of practice for information
security controls”14 provides guidance on change management as follows:

“12.1.2 Change management
Control

12
The ICB’s response to the DPC’s queries submitted by email on 15 August 2019.
13
The ICB’s response to the DPC’s queries submitted by email on 15 August 2019 at page 4.
14
ISO/IEC 27002:2013(E), Second edition, 2013-10-01.

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Changes to the organization, business processes, information processing facilities and
systems that affect information security should be controlled.

Implementation guidance
In particular, the following items should be considered:
a) identification and recording of significant changes;
b) planning and testing of changes;
c) assessment of the potential impacts, including information security impacts, of such
changes;
d) formal approval procedure for proposed changes;
e) verification that information security requirements have been met;
f) communication of change details to all relevant persons;
g) fall-back procedures, including procedures and responsibilities for aborting and
recovering from unsuccessful changes and unforeseen events;
h) provision of an emergency change process to enable quick and controlled
implementation of changes needed to resolve an incident (see 16.1).

Formal management responsibilities and procedures should be in place to ensure
satisfactory control of all changes. When changes are made, an audit log containing
all relevant information should be retained.

Other information
Inadequate control of changes to information processing facilities and systems is a
common cause of system or security failures. Changes to the operational environment,
especially when transferring a system from development to operational stage, can
impact on the reliability of applications (see 14.2.2).”

6.18 The ISO’s code of practice provides guidance for organisations implementing commonly
accepted information security controls. It provides that the resources employed in
implementing controls need to be balanced against the business harm likely to result from
security issues in the absence of those controls. The code of practice provides that:

“This International Standard may be regarded as a starting point for developing
organization-specific guidelines. Not all of the controls and guidance in this code of
practice may be applicable. Furthermore, additional controls and guidelines not
included in this standard may be required.”15

6.19 The ICB’s change management process that was in place at the time of the code change did
not make any provision for testing proposed coding changes, nor did it make any provision
for a formal approval procedure for proposed coding changes. The process did not require
any testing and it did not make provision for such testing to be documented if and when
actually carried out. While the process did require changes to be discussed and documented
with management, and it did require certain matters to be “agreed by all relevant parties”,

15
At paragraph 0.4.

14

it did not provide a formal approval procedure. No provision of the change management
process required proposed changes to be approved before being implemented and the
process did not make any provision for how responsibility for approving proposed changes
would be delegated. In this respect, having regard to the high risk outlined above, the ICB
did not approach its obligation under Article 25(1) correctly.

6.20 A comprehensive change management process that provides for testing and a formal
approval procedure for coding changes is essential to implementing the principle of accuracy
in the circumstances. Such provisions would contribute to ensuring that all proposed
changes are sufficiently scrutinised by the ICB prior to implementation by guiding such
testing and by promoting accountability. This, in turn, would reduce the likelihood of coding
errors that undermine measures designed to protect the accuracy of the personal data
processed on the database, such as the filter on updates to completed accounts. In those
circumstances, I find that implementing a comprehensive change management process, to
include testing and a formal approval procedure for proposed coding changes, is an
appropriate organisational measure that the ICB was obliged to implement pursuant to
Article 25(1) of the GDPR.

6.21 I have also considered the guidance from the ISO, and while it does not expressly require a
documented change management process, it does provide that formal management
responsibilities and procedures for change management should be in place. It provides that
consideration should be given to testing and a formal approval procedure for proposed
changes. Furthermore, it acknowledges that resources employed in implementing controls
need to be balanced against the business harm likely to result from security issues in the
absence of those controls. The ICB operates a database with sensitive personal data
concerning approximately 2.8 million data subjects. Changes to this database creates a high
risk for rights and freedoms of natural persons. In those circumstances, a comprehensive
change management process is appropriate to implement the principle of accuracy.

6.22 A technical measure to prevent payment profile updates to closed accounts and an
organisational measure to implement a comprehensive documented change management
process are measures that were readily available and mature solutions at the time of the
personal data breach. I have had regard to the high risk caused by the processing on the
database, the circumstances of the processing, the state of the art, and the cost of
implementing these measures in finding that they were appropriate within the meaning of
Article 25(1) of the GDPR. I consider that the measures could have been implemented by the
ICB without entailing excessive cost or difficulties.

i. Findings

6.23 I find that the ICB infringed Article 25(1) of the GDPR both at the time of the determination
of the means for processing and at the time of the processing itself on the ICB database, by
failing to implement appropriate technical and organisational measures designed to
implement data-protection principles in an effective manner and to integrate the necessary
safeguards into the processing in order to meet the requirements of the GDPR and protect

15

the rights of data subjects. The appropriate technical and organisational measures that the
ICB ought to have implemented include a technical measure to prevent payment profile
updates to closed accounts during the period between 28 June 2018 and 30 August 2018;
and a comprehensive documented change management process that makes express
provision for, amongst other things, the testing of coding changes and a formal approval
procedure for proposed coding changes.

7. Issue 2: Articles 5(2) and 24(1) of the GDPR

7.1 Article 5(2) of the GDPR provides:

“The controller shall be responsible for, and be able to demonstrate compliance with,
paragraph 1 (‘accountability’).”

7.2 Article 24 of the GDPR provides:

“1. Taking into account the nature, scope, context and purposes of processing as well
as the risks of varying likelihood and severity for the rights and freedoms of natural
persons, the controller shall implement appropriate technical and organisational
measures to ensure and to be able to demonstrate that processing is performed in
accordance with this Regulation. Those measures shall be reviewed and updated
where necessary.

2. Where proportionate in relation to processing activities, the measures referred to
in paragraph 1 shall include the implementation of appropriate data protection
policies by the controller.

3. Adherence to approved codes of conduct as referred to in Article 40 or approved
certification mechanisms as referred to in Article 42 may be used as an element by
which to demonstrate compliance with the obligations of the controller.”

7.3 Article 5(2) of the GDPR provides that controllers are responsible not only for complying with
the data protection principles, but are also accountable for being able to demonstrate their
compliance. Article 24(1) of the GDPR develops this accountability principle by requiring that
controllers implement appropriate technical and organisational measures to ensure and to
be able to demonstrate that processing is performed in accordance with the GDPR.

7.4 This issue concerns whether the ICB complied with its obligation to demonstrate compliance.
In considering this issue, it is necessary to first note that the ICB is required to carry out
testing of proposed code changes to the ICB’s database in order to ensure that its processing
is performed in accordance with Article 25(1) of the GDPR. As outlined above, code changes
to the ICB database create specific risks to the accuracy of the personal data processed on
it. Having regard to the high risk for the rights and freedoms of natural persons, the state of

16

the art, and the cost of implementation, I find that testing of proposed changes is an
appropriate measure, within the meaning of Article 25(1) of the GDPR. The ICB is obliged to
implement this testing before making any changes to the code of its database. Therefore,
this issue concerns whether the ICB demonstrated compliance with this obligation to
undertake appropriate testing of proposed changes to its database.

7.5 The ICB submitted that it carried out testing of the proposed changes before implementing
the code change. However, it did not maintain any records of the testing undertaken. Having
regard to the high risk to the rights and freedoms of natural persons presented by the
processing on the ICB database as outlined above, I find that the obligation to demonstrate
compliance, pursuant to Articles 5(2) and 24(1) of the GDPR, required the ICB to maintain a
documented record of the testing undertaken in respect of code change. In addition to
demonstrating compliance as required by Articles 5(2) and 24(1), such records of testing are
also useful for putting the data protection principles in Article 5(1) into practice. The testing
undertaken by the ICB prior to the code change failed to identify that the proposed change
would remove the filter that prevented updates to closed accounts. If the ICB had
maintained records of the testing undertaken, it could analyse that testing with the benefit
of hindsight, and potentially identify improvements to its future testing. This, in turn, would
reduce the risk of similar code errors occurring in the future. Furthermore, a record of the
testing undertaken could assist the ICB in identifying why they only became aware of the
personal data breach when an ICB member notified them of an error regarding a customer
credit card record over 8 weeks after the code change.

7.6 The ICB submitted that “the code change was tested per ISO requirements by ICB technical
staff”16. I have had regard to the ISO standards as relied upon by the ICB In the context of
demonstrating compliance with its testing obligations. The ISO’s Code of practice for
information security controls provides that changes to operational systems and applications
should be tested in a testing or staging environment prior to being applied to operational
systems17. The Code also provides that testing of security functionality should be carried out
during development18 and that acceptance testing programs should be established for new
information systems, upgrades and new versions19. The code also provides that when
changes are made to information processing facilities and systems that affect information
security, an audit log containing all relevant information should be retained20. The ISO’s
“Information security risk management”21 standard provides methods for assessing
technical vulnerabilities in the context of risk management. These methods include Security
Testing and Evaluation and Code Review, amongst others22.

16
ICB submissions dated 15 August 2019.
17
Control 12.1.4 at page 41.
18
Control 14.2.8 at page 61.
19
Control 14.2.9 at page 61.
20
Ibid at page 39.
21
ISO/IEC 27005:2018(E), Third edition, July 2018.
22
Ibid at page 44.

17

7.7 The ISO standards relied on by the ICB provides guidance to organisations for approaching
the obligation to test changes to information security management systems. Complying with
the standards does not result in a documented record of testing undertaken by the ICB. The
ICB’s statement that the code change was tested per ISO requirements does not
demonstrate compliance with its obligation to test the code because it does not record the
steps undertaken by the ICB in applying this guidance and in implementing appropriate
testing. In the absence of a documented record of the testing actually undertaken, the ICB
has failed to demonstrate compliance with its obligation to undertake appropriate testing.

7.8 The ICB submitted a blank Data Protection Impact Assessment template during the Inquiry.
This DPIA contains no documented record of the testing that the ICB decided to apply. The
ICB also submitted a change control form, titled “Irish Credit Bureau Change Request – PP
Update”, dated 28 June 2018. This change control form included an “Impact Assessment”
that stated that the risk assessment was “Medium”. I have had regard to these documents
in the context of the ICB’s obligation to maintain a documented record of the testing. The
documents contain no analysis of the nature of the risk and fail to identify any measures to
mitigate any existing risk.

The ICB’s submissions outlined that the
technical staff implementing the change did not test for the filter that blocked updates to
closed accounts, which the ICB implemented 20 years previously, as they were unaware of
the nature of the updates received from some member systems. Had a risk analysis been
appropriately implemented, the risk of the filter being removed would have been identified.
The risk analysis would also have identified appropriate testing for the filter. Therefore, a
properly documented risk analysis would have assisted the ICB not only in identifying
appropriate testing, but also in demonstrating compliance with its obligation to carry out
such testing. However, the blank Data Protection Impact Assessment and the change control
form submitted by the ICB did not identify the nature of the risks, and did not demonstrate
the ICB’s compliance with its obligation to undertake appropriate testing of proposed
changes to its database.

7.9 The ICB has failed to maintain a documented record of the testing undertaken in respect of
the code change and, accordingly, I have not been able to assess the adequacy of the testing
undertaken. In those circumstances, I find that the ICB has infringed Articles 5(2) and 25(1)
of the GDPR by failing to demonstrate compliance with its obligation to undertake
appropriate testing of proposed changes to its database.

i. Finding

7.10 I find that the ICB infringed Articles 5(2) and 24(1) of the GDPR by failing to demonstrate
compliance with its obligation, pursuant to Article 25(1) of the GDPR, to undertake
appropriate testing of proposed changes to its database.

18

8. Issue 3: Article 26(1) of the GDPR

8.1 Article 26(1) of the GDPR provides:

“Where two or more controllers jointly determine the purposes and means of
processing, they shall be joint controllers. They shall in a transparent manner
determine their respective responsibilities for compliance with the obligations under
this Regulation, in particular as regards the exercising of the rights of the data subject
and their respective duties to provide the information referred to in Articles 13 and 14,
by means of an arrangement between them unless, and in so far as, the respective
responsibilities of the controllers are determined by Union or Member State law to
which the controllers are subject. The arrangement may designate a contact point for
data subjects.”

8.2 The obligation in Article 26(1) to implement an arrangement applies only to joint controllers.
Joint controllership arises where two or more entities jointly determine the purposes and
means of a particular processing operation. The processing operations under consideration
in this Decision concern the operation of the ICB database. In order for joint controllership
to exist, the ICB must jointly determine both the purposes and means of the processing with
another entity; it is not sufficient for joint determination to occur in relation to either one of
the purposes or the means alone.

8.3 In Camera di Commercio,Industria, Artigianato e Agricoltura di Lecce v Manni23 the Court of
Justice of the European Union considered the processing of personal data on a companies
register maintained by the Lecce Chamber of Commerce. The register identified the director
of an insolvent company. In relation to the issue of controllership, the Court held that:

“by transcribing and keeping that information in the register and communicating it,
where appropriate, on request to third parties, the authority responsible for
maintaining that register carries out ‘processing of personal data’ for which it is the
‘controller’, within the meaning of the definitions set out Article 2(b) and (d) of
Directive 95/46.”24

8.4 The purposes of the processing of personal data on the ICB database is set out in the
agreement entered into between the ICB and its members. The ICB submitted a template of
this agreement to the Case Officer. That agreement provides that “…all data and information
received by the Member from the ICB may only be used for credit assessment and account
maintenance purposes.”25 I am satisfied that the ICB processes personal data on its database
in order to make the personal data available to relevant lenders for credit assessment and
account maintenance purposes. The concept of controller is determined by a factual rather
than a formal analysis. This means that it is necessary to look past the written agreement

23
Case C‑398/15, Camera di Commercio,Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni,
judgment of 9 March 2017 (ECLI:EU:C:2017:197).
24
At paragraph 35.
25
At clause 2.6.

19

and to look at which entities actually exercise determinative influence over why the
processing is taking place and for which purpose. I am satisfied that both the ICB and its
members jointly determine the purposes of the processing on the database. The members
of the ICB agree to register credit agreements so that the ICB can process this personal data
for the benefit of the members’ credit assessment and account maintenance purposes.
These are common purposes shared by the ICB and its members and I am satisfied that both
parties factually determine these purposes for the submission, storage, and retrieval of the
information on the database when entering the agreement.

8.5 Many of the essential means of the processing on the ICB database were set out in the “ICB
Members’ Technical Manual July 2015” during the time under consideration in this Decision.
The technical manual determined the duration of processing on the database by providing
that “Loan Data is retained on the ICB database for 5 years from the time the agreement is
closed”26. The technical manual determined how the database is updated and provided
detailed specifications for how members must send updates to the ICB27. The manual also
provided detailed specifications for how members can request information from the system
and how the replies are sent28. The technical manual also determined the extent of the types
of personal data processed on the database. For example, paragraph 4.3.1 specifies the
mandatory personal data that members must submit when registering an account holder.
This includes the account holder’s name and address, their gender, occupation, date of birth,
and telephone number. The ICB furnished the Technical Manual to its members. I am
satisfied that the ICB has alone determined the means of processing specified in the
Technical Manual.

8.6 The ICB also determined who had access to the database. This is one of the essential means
of the processing on the database. As outlined above, the ICB members are contractually
obliged to register credit agreements with the ICB and are entitled to access to the ICB's full
range of credit reference services. The ICB determines which entities may become ICB
members and therefore the ICB determines the categories of recipients of the personal data.
The ICB also determined the nature of the processing on the database by devising its own
system of generating credit scores. The ICB alone determined how these scores are
calculated.

8.7 I find that the ICB determines the essential means of the processing of personal data on the
ICB database and that there is no evidence that any other entity has jointly determined those
means. There is no evidence that the ICB members, or any entity other than the ICB, exercise
determinative influence over the means of the processing on the ICB database. Therefore, I
in circumstances where the ICB determines the purposes and means of the processing on
the database, I find that it alone is the controller of the database. Therefore, the transmission
of personal data from ICB members to the ICB, and vice versa, constitute disclosures of
personal data between two controllers.

26
At paragraph 7.3.
27
Part 4 of the Technical Manual titled “New Business and Updates”.
28
Part 4 of the Technical Manual titled “Enquiry Subsystem”.

20

ii. Finding

8.8 I find that the ICB did not infringe Article 26(1) of the GDPR. The ICB members are not joint
controllers in respect of the ICB database and therefore there was no obligation on the ICB
or the members to determine their respective responsibilities for compliance with the GDPR
by means of an arrangement.

9. Decision on Corrective Powers
9.1 I have set out above, pursuant to Section 111(1)(a) of the 2018 Act, my decision to the effect
that the ICB has infringed Articles 25(1), 5(2), and 24(1) of the GDPR. Under Section 111(2)
of the 2018 Act, I must now, make a decision as to whether corrective powers should be
exercised in respect of the ICB and, if so, the corrective powers to be exercised. The
remaining question for determination in this Decision is whether or not those findings merit
the exercise of any of the corrective powers set out in Article 58(2) and, if so, which one(s).

9.2 Recital 129, which acts as an aid to the interpretation of Article 58, provides that:

“…each measure should be appropriate, necessary and proportionate in view of
ensuring compliance with this Regulation, taking into account the circumstances of
each individual case...”

9.3 In the circumstances of the within inquiry and the findings of infringements, I find that the
exercise of one or more corrective powers is appropriate, necessary and proportionate for
the purpose of ensuring compliance with the GDPR. Having carefully considered the
infringements identified in this Decision, I have decided to exercise corrective powers in
accordance with Section 115 of the 2018 Act and Article 58(2) of the GDPR. I set out below
the corrective powers that are appropriate to address the infringements in the particular
circumstances, and the reasons for that decision, having considered all of the corrective
powers set out in Article 58(2). In summary, the corrective powers that I have decided to
exercise are:

a) Article 58(2)(b) – I have decided to issue a reprimand to the ICB in respect of its
infringements of Articles 25(1), 5(2), and 24(1) of the GDPR; and
b) Article 58(2)(i) – I have decided to impose an administrative fine, pursuant to Article
83, in respect of the ICB’s infringement of Article 25(1) of the GDPR.

9.4 The Draft Decision provisionally proposed to order the ICB to bring its processing operations
regarding its database into compliance with Article 25(1) of the GDPR in accordance with
Article 58(2)(d) of the GDPR. That provisional order would have required the ICB to
implement a formal approval procedure for proposed code changes on the ICB database. In
making that provisional order, the Draft Decision had due regard to the measures
implemented by the ICB since the personal data breach, including its updated change
management process as set out in the “ICB ISO Policy document”, dated 15 December 2020.

21

That updated change management process did not include a formal approval procedure: it
did not require proposed changes to be approved before being implemented and it did not
make any provision for how responsibility for approving proposed changes should be
delegated. In this context, the Draft Decision proposed to order the ICB to implement a
formal approval procedure for proposed coding changes on the ICB database.

9.5 The ICB’s submissions on the Draft Decision appended the “Irish Credit Bureau Change
Management Policy”, dated 17 February 2021. The ICB created this policy during the course
of the Inquiry. It is applicable to all systemic change, organisational change, and change in
projects in the ICB, including code changes. The policy introduces a formal approval
requirement during the five stages outlined throughout the ICB’s change process and sets
out responsibility for approving change requests. It also provides that the CEO must approve
high risk changes, and this category expressly includes changes where personal data is
affected. The ICB’s accompanying change control forms also include a specific section
requiring approval. The ICB submitted that the proposed order in the Draft Decision is no
longer necessary in light of the ICB’s updated formal approval procedure. I accept this
submission. Since the personal data breach, I am satisfied that the ICB has implemented a
formal approval procedure that requires proposed changes to be approved before being
implemented and that makes provision for how responsibility for approving proposed
changes should be delegated. This procedure, if properly implemented by the ICB, would
ensure that proposed coding changes are analysed, and that responsibility is appropriately
delegated, before changes are made that could affect the accuracy of the personal data
processed on the ICB’s database. In those circumstances, it is not appropriate or necessary
for this Decision to make an order pursuant to Article 58(2)(d) of the GDPR.

A. Reprimand

9.6 I issue the ICB with a reprimand in respect of its infringements of Articles 25(1), 5(2), and
24(1) of the GDPR. Article 58(2)(b) provides that a supervisory authority shall have the
power to “issue reprimands to a controller or processor where processing operations have
infringed provisions of this Regulation.” I consider that a reprimand is appropriate,
necessary and proportionate in view of ensuring compliance with the infringed Articles, as
the reprimand will act to formally recognise the serious nature of all of the infringements.
Further, the reprimand emphasises the requirement for ICB to take all relevant steps to
ensure future compliance with the infringed Articles. It is clear from the GDPR that a
reprimand does not have to be issued in isolation to the exercise of any other corrective
power. Furthermore, each measure that I impose by way of the exercise of a corrective
power for the infringements I have found must be appropriate, necessary and proportionate
in view of ensuring compliance with the GDPR. In this respect, I consider it appropriate,
necessary and proportionate to impose a reprimand in addition to the administrative fine
detailed below in order to give full effect to the obligations in Articles 25(1), 5(2), and 24(1)
and to formally recognise the seriousness of the infringements found in this Decision.

22

B. Administrative Fine

9.7 I find that the ICB’s infringement of Article 25(1) of the GDPR warrants the imposition of an
administrative fine pursuant to Article 58(2)(i) GDPR in addition to the reprimand. The
reason for that decision and the method for calculating that fine are set out below.

i. Whether Each Infringement Warrants an Administrative Fine

9.8 Article 58(2)(i) permits the DPC to consider the imposition of an administrative fine,
pursuant to Article 83, in addition to, or instead of, the other measures outlined in Article
58(2), depending on the circumstances of each individual case. This is also reflected in
Section 115 of the Data Protection Act, 2018, which permits the DPC to impose an
administrative fine on its own or in combination with any other corrective power specified
in Article 58(2). Article 83(1), in turn, identifies that the administration of fines “shall in each
individual case be effective, proportionate and dissuasive”. In this context, when deciding
whether or not to impose an administrative fine and the amount of any such fine, I must
give due regard to the criteria set out in Article 83(2) GDPR, which provide that:

“Administrative fines shall, depending on the circumstances of each individual case,
be imposed in addition to, or instead of, measures referred to in points (a) to (h) and
(j) of Article 58(2). When deciding whether to impose an administrative fine and
deciding on the amount of the administrative fine in each individual case due regard
shall be given to the following:

(a) the nature, gravity and duration of the infringement taking into account the nature
scope or purpose of the processing concerned as well as the number of data subjects
affected and the level of damage suffered by them;

(b) the intentional or negligent character of the infringement;

(c) any action taken by the controller or processor to mitigate the damage suffered by
data subjects;

(d) the degree of responsibility of the controller or processor taking into account
technical and organisational measures implemented by them pursuant to Articles 25
and 32;

(e) any relevant previous infringements by the controller or processor;

(f) the degree of cooperation with the supervisory authority, in order to remedy the
infringement and mitigate the possible adverse effects of the infringement;

(g) the categories of personal data affected by the infringement;

(h) the manner in which the infringement became known to the supervisory authority,
in particular whether, and if so to what extent, the controller or processor notified the
infringement;

23

(i) where measures referred to in Article 58(2) have previously been ordered against
the controller or processor concerned with regard to the same subject-matter,
compliance with those measures;

(j) adherence to approved codes of conduct pursuant to Article 40 or approved
certification mechanisms pursuant to Article 42; and

(k) any other aggravating or mitigating factor applicable to the circumstances of the
case, such as financial benefits gained, or losses avoided, directly or indirectly, from
the infringement.”

9.9 The decision as to whether to impose an administrative fine (and if so, the amount of the
fine) is a cumulative decision which is taken having had regard to of the factors as set out in
Article 83(2)(a) to (k). Therefore, I will now proceed to consider each of these criteria in turn
in respect of the ICB’s infringements of Article 25(1), and Articles 5(2) & 24(1) respectively:

a) the nature, gravity and duration of the infringement taking into account the nature scope
or purpose of the processing concerned as well as the number of data subjects affected and
the level of damage suffered by them;

9.10 The nature of the ICB’s infringement of Article 25(1) comprises a failure to implement
appropriate technical and organisational measures designed to implement the principle of
accuracy in its database. Specifically, the infringement of this Article concerned the ICB’s
failure to utilise a technical measure to prevent payment profile updates to closed accounts
and a failure to implement a comprehensive documented change management process. The
objective of Article 25(1) is to ensure that controllers implement appropriate measures
designed to implement the data-protection principles, including the principle of accuracy.
In assessing the nature of the infringement of Article 25(1), I have had regard to the scope
and purpose of the processing on the ICB database. The database contains information
relating to approximately 2.8 million data subjects and the ICB submitted that this figure
does not vary significantly from year to year29. The database records the performance of
credit agreements concerning ICB members with the purpose of assisting those members
in assessing credit applications from potential borrowers. Therefore, accuracy in the
database is essential to ensuring fairness in respect of data subjects’ applications for credit.
It is paramount for this purpose that the ICB implements appropriate technical and
organisational measures to ensure the accuracy of the personal data processed on the
database. The ICB’s infringement of Article 25(1) undermined the accuracy of 15,120 closed
loan records. In those circumstances, I find that the nature of the ICB’s infringement of
Article 25(1) is serious.

9.11 The nature of the ICB’s infringement of Article 5(2) and 24(1) of the GDPR comprises a failure
to demonstrate compliance with its obligation, pursuant to Article 25(1) of the GDPR, to
undertake appropriate testing of proposed changes to its database. Specifically, this
infringement concerns the ICB’s failure to maintain a documented record of the testing

29
ICB submissions on the Draft Decision, dated 23 February 2021, at page 6.

24

undertaken in respect of coding changes to the database. The objective of Articles 5(2) and
24(1) of the GDPR include not only ensuring compliance with the data protection principles,
but also ensuring that controllers are able to demonstrate that compliance to supervisory
authorities. I consider that these articles are crucial to the oversight and enforcement
actions of supervisory authorities, such as the DPC. Non-compliance with these articles may
prevent or hinder a supervisory authority in its enforcement action designed to protect the
rights and freedoms of data subjects. In the particular circumstances, the ICB’s failure to
maintain a documented record of the testing undertaken has prevented the DPC from
analysing the adequacy of that testing. In those circumstances, I find that the nature of the
ICB’s infringement of Articles 5(2) and 24(1) is also serious.

9.12 In assessing the gravity of the ICB’s infringement of Article 25(1), I have had regard to the
number of data subjects affected and the level of damage suffered by them. The ICB’s failure
to implement a technical measure to prevent payment profile updates to closed accounts,
and its failure to implement a comprehensive documented change management process,
directly contributed to the personal data breach. This breach resulted in the ICB database
recording an incorrect payment history of 15,120 accounts. This could have influenced the
credit ratings of 15,120 data subjects had all of those records been accessed. However, the
ICB disclosed 1,062 of the inaccurate accounts to ICB members and directly to data subjects
before it fixed the issue. The principle of accuracy requires that any personal data stored on
the ICB database must be accurate irrespective of whether the ICB views or shares that
personal data. Therefore, in considering the number of data subjects affected by the ICB’s
infringement, it is appropriate to have regard to the 15,120 inaccurate accounts. However,
in respect of the level of damage suffered by the data subjects, I accept that the personal
data breach did not affect the credit ratings of most of the affected data subjects because
the ICB creates credit ratings only when requested by ICB members. Therefore, the level of
damage suffered by most of the 15,120 data subjects was minimal. However, the disclosure
1,062 of the inaccurate accounts, nonetheless, reflects a highly significant number of data
subjects.

9.13 Turning to the level of damage suffered by the data subjects in respect of the 1,062
inaccurate disclosed accounts, the ICB submitted that the inaccuracies caused a minimal
impact on data subjects and that the gravity of this infringement should be assessed as
moderate to minor. In this regard, the ICB submitted that the only change on the closed
loan account for the vast majority of those accounts was the date the account closed. All
the account records that were disclosed to ICB members were limited to this inaccuracy
alone. The ICB submitted that the potential impact of this inaccuracy was minimal and that
the disclosure of this inaccurate data to ICB Members was unlikely to cause ICB members
to refuse credit. The ICB also outlined how it did not receive any complaints from the 118
data subjects who obtained an incorrect credit report. The ICB did not notify the remainder
of the data subjects in respect of the 1,062 inaccurate disclosed accounts. However, it did
ask its members to confirm to the ICB if it had been necessary for the members to contact
any data subjects arising from those members’ reviews of their lending decisions. The ICB
informed the DPC that it “has not been advised by any member that any of this population
of data subjects had an application for credit declined because of the incorrect closure date

25

on a closed account.”30 However, the ICB also acknowledged in its submissions that an ICB
member’s internal processes and practices will also play a significant role in their lending
decisions and rating the credit worthiness of an individual and that the same data provided
from ICB can lead to different lending decisions being taken by different lenders31.

9.14 I do not accept the ICB’s submission that the inaccuracies caused a minimal impact on the
data subjects in respect of the 1,062 inaccurate disclosed accounts in the circumstances.
The ICB discloses personal data to its members in order to assist them in making decisions
on applications for credit. This personal data includes the date on which accounts closed.
The inclusion of this personal data by the ICB suggests that it is relevant to the ICB’s purpose
of processing that data i.e. assisting ICB members’ decisions on credit. This is consistent with
the ICB’s own letters sent to data subjects on 21 September 2018 in which it stated that “If
you applied for a loan with an ICB member during this period it could have affected that
member’s decision on that loan application.” Where inaccurate personal data are disclosed
to an ICB member for the purpose of assisting that entity in assessing applications for credit,
this significantly deprives data subjects of control over their personal data.

9.15 A complaint received by the DPC concerning the personal data breach further illustrates
how inaccurate information regarding the date on which accounts closed can adversely
affect data subjects. The DPC received complaint C-18-10-11 in which a data subject stated,
“I have not been granted a mortgage due to this gross error on the part of ICB”. The
complainant’s credit card finalisation date had been inaccurately altered from February
2015 to February 2018. This inaccurate personal data was shared with an ICB member. The
complainant had given the true date in a mortgage application, but the inaccuracy on the
credit report caused the relevant bank to question that application. The complainant was
ultimately granted a mortgage from another bank, which happened to be the same bank
that submitted the inaccurate personal data to the ICB (and therefore was in a position to
verify the inaccuracy itself). The complaint to the DPC was resolved amicably. While the
original bank did not reject the application and the data subject instead proceeded with
another bank, this complaint illustrates the relevance of the date on which accounts closed
to ICB members’ decisions on applications for credit. Such inaccurate information could also
cause ICB members to question the accuracy of truthful information submitted by data
subjects in applications for credit.

9.16 Article 83(2)(a) requires that I must take into account the level of damage suffered by data
subjects in assessing the criteria under that sub article. I consider that the level of damage
suffered by data subjects is relevant in assessing the gravity of the ICB’s infringement of
Article 25(1). Recital 75 of the GDPR describes the “damage” that can result where
processing does not accord with the requirements of the GDPR:

“The risk to the rights and freedoms of natural persons, of varying likelihood and
severity, may result from personal data processing which could lead to physical,
material or non-material damage, in particular: where the processing may give rise

30
ICB submissions on the Draft Decision, dated 23 February 2021, at page 10.
31
Ibid.

26

to…any other significant economic or social disadvantage; where data subjects might
be deprived of their rights and freedoms or prevented from exercising control over
their personal data…”

9.17 The personal data breach prevented the data subjects in respect of the 1,062 inaccurate
disclosed accounts from exercising control over their personal data. In order for data
subjects to exercise control over their personal data, they must able to predict with
sufficient certainty which personal data about them is being processed. The personal data
breach inaccurately amended the dates of the closed accounts, for a period that lasted up
to 9 weeks, without notifying the data subjects. While the data subjects had the right to
access this personal data during that period, it is significant that all of the inaccurate
personal data related to closed accounts. Those data subjects may have justifiably assumed
that their personal data concerning those closed accounts would not be subject to
amendment after the account closed. Hence, those data subjects may have been less likely
to seek to verify the accuracy of their personal data concerning accounts that had closed up
to five years previously. The inaccuracy is compounded by the purpose for which the
inaccurate personal data was shared with ICB members. The fact that ICB members were
accessing this personal data suggests that they may have actively been considering
applications for credit from the data subjects. Therefore, not only was there a loss of
control, but there was also a risk of economic disadvantage arising from the ICB’s disclosure
of the inaccurate data. For instance, in complaint C-18-10-11, the inaccuracy caused, at a
minimum, a delay in the data subject’s mortgage application and resulted in the data subject
proceeding with another bank. Therefore, the personal data breach caused economic
disadvantage that is significant in that case. Furthermore, the ICB member who notified the
ICB of the personal data breach on 27 August 2018 also identified that the issue was
influencing the data subject’s credit score. While it is not possible to detail the precise
damage suffered by each of the data subjects in respect of the 1,062 inaccurate disclosed
accounts, the potential for damage to those data subjects is a relevant factor to take into
consideration in my analysis as to whether a fine should be imposed under Article 83 and,
if so, the amount of that fine. I find that the loss of control, and the potential for economic
disadvantage, resulted in the data subjects suffering a high level of cumulative damage.

9.18 I find that the gravity of the ICB’s infringement of Article 25(1) was severe. In making this
finding, I have had regard to the fact that the personal data breach affected the accounts of
15,120 data subjects. However, I have balanced this with how the level of damage suffered
by most of those data subjects was minimal in circumstances where the ICB fixed the
inaccurate data without disclosing all but 1,062 of those inaccurate accounts. Nonetheless,
this smaller number is still a highly significant number of inaccurate accounts. This resulted
in a high level of cumulative damage across the high number of data subjects. The data
subjects were prevented from exercising control over their data and there was significant
potential for economic disadvantage from the breach in circumstances where the ICB
members used the inaccurate personal data in considering applications for credit from
those data subjects.

27

9.19 In assessing the gravity of the ICB’s infringement of Articles 5(2) and 24(1), I have had regard
to the manner in which the infringement prevented the DPC from analysing the adequacy
of the testing undertaken by the ICB. However, the ICB maintains that its testing was
sufficient. The finding of an infringement of Articles 5(2) and 24(1) relates to the ICB’s failure
to maintain a documented record of the testing undertaken and this decision does not make
any finding in relation to the adequacy of the testing. Therefore, in assessing the gravity of
the infringement, it is not appropriate to have regard to whether the level of testing
contributed to the personal data breach. In those circumstances, I find that the gravity of
the ICB’s infringement of Articles 5(2) and 24(1) was moderate.

9.20 Regarding the duration of the infringement of Article 25(1), the ICB removed the measure
that filtered payment profile updates to closed accounts on 28 June 2018 and re-
implemented it on 30 August 2018. Therefore, the duration of this element of the
infringement was 2 months and 2 days. Prior to, and during that period, the ICB also failed
to implement a comprehensive documented change management process. Therefore, for
the purposes of this Decision, the duration of this element of the infringement must be
assessed as commencing on 25 May 2018, at the enactment of the GDPR. As outlined above,
the ICB implemented a comprehensive documented change management process during
the course of the Inquiry and I am satisfied that this element of the infringement was
addressed when the ICB implemented its “Irish Credit Bureau Change Management Policy”,
dated 17 February 2021. Therefore, the duration of this element of the infringement was 2
years and 8 months in length. However, the element of this infringement concerning the
technical measure was limited to 2 months and 2 days.

9.21 Regarding the duration of the infringement of Articles 5(2) and 24(1), the ICB submitted that
it carried out testing of the proposed changes before implementing the code change.
However, these infringements relate to its failure to maintain a documented record of that
testing rather than the adequacy of the testing. The “Irish Credit Bureau Change Request –
PP Update” provides that the change request date was 9 March 2018. The code change was
then implemented on 28 June 2018. Therefore, it is clear that the ICB’s failure to maintain
a documented record of its testing in relation to this code change occurred between 9
March 2018 and 28 June 2018. In those circumstances, the infringement of Articles 5(2) and
24(1) commenced at the enactment of the GDPR on 25 May 2018 and ended on 28 June
2018. Therefore, the duration of the infringements was 1 month and 3 days.

b) the intentional or negligent character of the infringement;

9.22 The ICB implemented the code change with the intention of improving the accuracy of the
database by making provision for the infrequent cases where a customer of an ICB member
subsequently pays a contribution towards an account that was written-off, or that had
goods repossessed or surrendered.

9.23 The Article 29 Working Party Guidelines on the application and setting of administrative
fines for the purposes of Regulation 2016/679 provide that:

28

“In general, “intent” includes both knowledge and wilfulness in relation to the
characteristics of an offence, whereas “unintentional” means that there was no
intention to cause the infringement although the controller/processor breached the
duty of care which is required in the law.”32

9.24 I am satisfied that the ICB’s infringements of Articles 25(1), 5(2), and 24(1) were not
intentional on the part of the ICB. The removal of the filter to prevent payment profile
updates to closed accounts was unintentional and the intent of the ICB was to improve,
rather than damage, the accuracy of the database. Therefore, there was no knowledge or
wilfulness on the part of the ICB in this respect. Furthermore, there is no evidence of
knowledge or wilfulness on the part of the ICB in respect of its failure to implement a
comprehensive documented change management process, nor its failure to demonstrate
compliance with its obligation to undertake appropriate testing of proposed changes to its
database. Therefore, I find that the ICB’s infringements of Articles 25(1), 5(2), and 24(1)
were not intentional.

9.25 I find that the ICB’s infringements of Articles 25(1), 5(2), and 24(1) were negligent in
character within the meaning of Article 83(2)(b). I find that this is an aggravating factor in
the context of determining whether to impose an administrative fine and the amount of
that fine, if applicable, in the circumstances. I accept the ICB’s submission that the presence
of negligence does not automatically lean towards the imposition of an administrative fine.
However, in the particular circumstances, the ICB’s negligence is aggravating, and cannot
be considered neutral or mitigating. Firstly, the processing of personal data is at the core of
the ICB's business activities. It operates a complex database that processes a significant
amount of personal data, and works with financial institutions in obtaining and sharing this
personal data. In those circumstances, it ought to have been aware of the precise extent of
its obligation to implement appropriate technical and organisational measures designed to
implement data-protection principles in an effective manner. The ICB also ought to have
been aware of its obligation to demonstrate compliance with its obligation to undertake
appropriate testing of proposed changes to its database. Secondly, its failure to implement
a comprehensive documented change management process was not the result of the ICB
misinterpreting its obligations, nor was it the result of the ICB seeking to innovate the
manner in which it complies. The ICB did not seek to implement alternative measures
instead of providing for testing and a formal approval procedure in the change management
process. This illustrates that the ICB did not did not give sufficient attention or resources to
implementing the principle of accuracy. In all the circumstances, I find that the presence of
negligence is aggravating. While this is an aggravating factor, I have had regard to the fact
that the infringement was not intentional or wilful in attaching weight to this aggravating
factor and in the context of whether to impose an administrative fine and, if so, the amount
of that fine.

32
Article 29 Data Protection Working Party ‘Guidelines on the application and setting of administrative fines
for the purposes of Regulation 2016/679’ at page 11.

29

c) Any action taken by the controller or processor to mitigate the damage suffered by data
subjects;

9.26 I find that the ICB took significant action to mitigate the damage suffered by data subjects.
The ICB became aware of a potential issue regarding its database on 27 August 2018, it
promptly investigated the issue, and determined on 29 August 2018 that the code change
caused the error by removing the filters on the ICB database. The ICB fixed the validation
rules on 31 August 2018 and corrected the affected data on that date. Therefore, I am
satisfied that the ICB acted expeditiously in addressing the underlying technical issue and in
correcting the inaccurate data.

9.27 On 31 August 2018, the ICB notified 3 ICB members, whose updates accounted for 98% of
incorrect account records, of the personal data breach. The ICB notified the remaining 20
of its members, whose updates accounted for 2% of incorrect account records, of the
personal data breach by 5 September 2018. It also notified the 118 data subjects, who had
obtained an incorrect credit history check directly from the ICB, of the personal data breach.
By 21 September 2018, the ICB wrote to the ICB members who received inaccurate data in
response to a credit history check and advised those members that they should review any
credit decision made based on that affected data. I consider that these actions helped to
mitigate the damage suffered by those data subjects. The ICB did not notify the data
subjects whose inaccurate accounts were shared with ICB members. However, it did ask its
members to contact any data subjects whose credit application may have been adversely
affected by the inaccurate data.

9.28 The ICB notified the DPC of the personal data breach without undue delay pursuant to its
obligation under Article 33(1) of the GDPR. This allowed the DPC to assess the circumstances
of the personal data breach, including the risks to data subjects, and decide whether the
interests of data subjects require to be safeguarded to the extent possible by mitigating the
risks to them. However, for an action carried out by a controller to be considered a
mitigating factor, it must be a voluntary remedial action, whereby the controller takes
“responsibility to correct or limit the impact of their actions”33. An action, taken by a
controller where it is mandated to do so on foot of a statutory obligation is not a mitigating
factor for these purposes. Therefore, I do not consider the ICB’s notification of the personal
data breach to the DPC mitigating.

d) the degree of responsibility of the controller or processor taking into account technical and
organisational measures implemented by them pursuant to Articles 25 and 32;

9.29 As outlined above, the ICB infringed Article 25 of the GDPR by failing to implement
appropriate technical and organisational measures designed to implement data-protection
principles in an effective manner and to integrate the necessary safeguards into the
processing in order to meet the requirements of the GDPR and protect the rights of data
subjects. I consider that the ICB holds a high degree of responsibility for this failure and that

33
Article 29 Data Protection Working Party ‘Guidelines on the application and setting of administrative fines
for the purposes of Regulation 2016/679, page 13.

30

the absence of such measures must be deterred. However, in circumstances where this
factor forms the basis for the finding of the infringement of Article 25 against the ICB, this
factor cannot be considered aggravating in respect of the infringements.

e) any relevant previous infringements by the controller or processor;

9.30 There are no relevant previous infringements by the ICB. The ICB submitted that it has a
positive track record for over 30 years in processing the sensitive personal data held on its
database. I accept the ICB’s submission that this is an important factor that I must consider
in relation to the appropriateness of imposing an administrative. I also accept that this is a
mitigating factor in calculating any fine in the event that it is necessary to impose an
administrative fine.

f) the degree of cooperation with the supervisory authority, in order to remedy the
infringement and mitigate the possible adverse effects of the infringement;

9.31 The ICB cooperated fully with the DPC to remedy the infringements and to mitigate their
possible adverse effects. It initiated a range of remediation steps in response to the personal
data breach. Regarding its infringement of Articles 5(2) and 24(1) of the GDPR, the ICB
implemented new measures to address its requirement to demonstrate compliance with its
obligation to undertake appropriate testing of proposed changes to its database. It’s revised
Operations Security Policy makes express provision for testing in relation to ICB system
software, requiring a test plan, test case/results, and an implementation plan for all relevant
changes. The ICB also implemented the ICB Testing Policy and Procedures, the ICB Test Plan
Template, and the ICB Test Case Template, which further set out the testing procedures
implemented by the ICB. The Test Case Template will provide a detailed record of the testing
steps undertaken by ICB in relation to future changes. The ICB’s process now requires that
the Test Plan Template and Test Case Template must be completed for all testing conducted
by the ICB.

9.32 The ICB also undertook an extensive review and amendment of its technical and
organisational measures to ensure compliance with Article 25 of the GDPR. On discovery of
the technical error, ICB immediately investigated the error and took immediate remediation
action. It undertook a remediation governance review aimed at improving its existing
framework. The ICB’s technical working group met almost weekly to review progress in
strengthening ICB’s technical and organisational measures. The ICB created new policies
and processes in relation to change control and testing, and updated its existing policies and
processes. I have had regard to the suite of documentation submitted by the ICB with its
submissions on the Draft Decision, and those submitted throughout the Inquiry, as detailed
in the appendix to this Decision. These documents illustrate the gradual measures
implemented by the ICB in response to the personal data breach, the Inquiry, and finally the
Draft Decision. As outlined above, the measures implemented include a comprehensive
change management process that provides for testing and a formal approval procedure for,
amongst other things, coding changes. The process requires proposed changes to be
approved before being implemented and delegates responsibility for approving proposed
changes. I find that the ICB has shown a high degree of cooperation with the DPC and has

31

taken comprehensive steps to remedy the infringement of Article 25(1) and to mitigate its
adverse effects.

g) the categories of personal data affected by the infringement;

9.33 The categories of personal data affected by the infringements of Articles 25(1), 5(2), and
24(1) include sensitive personal data. However, the personal data does not include special
category personal data or data relating to criminal convictions as provided for in Articles 9
and 10 of the GDPR respectively. In its submissions on the Draft Decision, the ICB
acknowledged that it processes sensitive personal data, but submitted that the reference
to categories in Article 83(2)(g) means that the supervisory authority should consider if the
data controller was processing special category personal data (Article 9 of the GDPR) or data
relating to criminal convictions (Article 10).

9.34 The Administrative Fines Guidelines provide the following key questions for supervisory
authorities when consider the categories of personal data pursuant to Article 83(2)(g):

“Does the infringement concern processing of special categories of data set out in
articles 9 or 10 of the Regulation?
Is the data directly identifiable/ indirectly identifiable?
Does the processing involve data whose dissemination would cause immediate
damage/distress to the individual (which falls outside the category of article 9 or 10)?
Is the data directly available without technical protections, or is it encrypted?”34

9.35 It is clear that the presence of special category personal data and data relating to criminal
convictions are important matters to consider when applying Article 83(2)(g). However, the
third question above acknowledges that other sensitive personal data are relevant when
applying Article 83(2)(g). This is consistent with the purpose of Article 83(2)(g), which is to
ensure that each supervisory authority gives due regard to the categories of personal data
affected when deciding whether to impose an administrative fine and deciding on the
amount of the administrative fine. In this regard, the purpose of Articles 9 and 10 of the
GDPR is to provide special protection to certain types of personal data by setting out specific
rules for the processing of those types of personal data. It is not the purpose of articles 9
and 10 to limit the entire GDPR generally to certain specific tiers of personal data whenever
it is necessary to consider the categories of personal data being processed. For instance, in
the context of transfers, Article 49(5) refers to “specific categories of personal data”, thus,
acknowledging that there are a range of distinct categories of personal data beyond a simple
tiered system of categorisation. Therefore, the position that the effect of Articles 9 and 10
is to limit the GDPR’s general consideration of categories of personal data to considering
whether the personal data is special category, data relating to criminal convictions, or
whether it falls into a third catch-all category, is not sustainable. In the context of applying
Article 83(2)(g) (as distinct from applying Articles 9 or 10), it is necessary to consider the
precise categories of personal data involved and the sensitivity of those categories.

34
Article 29 Data Protection Working Party ‘Guidelines on the application and setting of administrative fines
for the purposes of Regulation 2016/679, at page 14.

32

9.36 While data subjects’ performance on credit agreements is not special category personal
data within the meaning of Article 9 of the GDPR, nor does it concern processing of personal
data relating to criminal convictions and offences or related security measures within the
meaning of Article 10 of the GDPR, this category of personal data is, nonetheless, highly
sensitive in the circumstances. As outlined above, any mishandling of this personal data,
due to inaccuracy, unauthorised disclosure, or otherwise, may seriously infringe the rights
and freedoms of data subjects. Therefore, I find that this category of personal data is highly
sensitive. In those circumstances, this is an aggravating factor for the purpose of deciding
whether to impose and administrative fine, and if so, the amount of that fine.

h) The manner in which the infringement became known to the supervisory authority, in
particular whether, and if so to what extent, the controller or processor notified the
infringement;

9.37 The Inquiry was conducted to examine whether or not the ICB has discharged its obligations
in connection with the subject matter of the personal data breach and to determine
whether or not any provision(s) of the 2018 Act and/or the GDPR had been contravened by
the ICB in that context. Hence, the ICB’s notification of the personal data breach indirectly
contributed to the infringements becoming known to the DPC. The ICB submitted that the
Draft Decision’s proposal to treat the ICB’s notification of “the infringement” to the DPC as
a neutral factor fails to properly assess the criteria set out in Article 83(2)(h). It is important
to note that notifying a personal data breach will not always necessarily equate to notifying
an infringement of the GDPR because not all personal data breaches will necessarily indicate
an underlying infringement of a provision of the GDPR. Nonetheless, in this case, the
notification of the personal data breach indirectly contributed to the infringements
becoming known to the DPC.

9.38 The Administrative Fines Guidelines consider the relevance of such notifications regarding
administrative fines:

“The controller has an obligation according to the Regulation to notify the supervisory
authority about personal data breaches. Where the controller merely fulfils this
obligation, compliance with the obligation cannot be interpreted as an attenuating/
mitigating factor.”35

9.39 The ICB’s compliance with its own obligation to notify personal data breaches under Article
33(1) cannot be considered mitigating in respect of the infringements of Articles 25(1), 5(2),
and 24(1). Therefore, this factor is not mitigating. However, as set out above, I have had
regard to the circumstances of this individual case and the ICB’s response to the personal
data breach in considering Article 83(2)(c) and (f) above. Specifically, this includes the action
taken by the ICB to mitigate the damage suffered by data subjects and the cooperation it
gave in remedying the infringement and mitigating the possible adverse effects of the
infringement. However, the ICB’s notification to the DPC itself is not mitigating because it

35
Article 29 Data Protection Working Party ‘Guidelines on the application and setting of administrative fines
for the purposes of Regulation 2016/679, at page 15.

33

was obliged to notify under Article 33(1) in circumstances where the personal data breach
resulted in a risk to the rights and freedoms of the data subjects.

i) Where measures referred to in Article 58(2) have previously been ordered against the
controller or processor concerned with regard to the same subject-matter, compliance with
those measures;

9.40 Corrective powers have not previously been ordered against the ICB with regard to the
subject-matter of this Decision.

j) adherence to approved codes of conduct pursuant to Article 40 or approved certification
mechanisms pursuant to Article 42;

9.41 The ICB achieved ISO27001 certification in October 2012 and has maintained its certification
with 6 monthly audits by Certification Europe. There are currently no fully approved
national certification schemes or mechanisms in line with Article 42 of the GDPR. This factor
in Article 83(2)(j) is limited to approved codes of conduct or certification mechanisms.
Therefore, this factor cannot currently be considered mitigating nor aggravating in the
circumstances.

k) Any other aggravating or mitigating factor applicable to the circumstances of the case, such
as financial benefits gained, or losses avoided, directly or indirectly, from the infringement.

9.42 I consider that the matters considered under Article 83(2)(a) – (j) reflect an exhaustive
account of both the aggravating and mitigating factors applicable in the circumstances of
the case.

9.43 When imposing corrective measure(s), I am obliged to select the measure(s) that are
effective, proportionate and dissuasive in response to the particular infringements. The
assessment of what is effective, proportionate and dissuasive must be made in the context
of the objective pursued by the corrective measures. The Administrative Fines Guidelines
provide that:

“The assessment of what is effective, proportional and dissuasive in each case will
have to also reflect the objective pursued by the corrective measure chosen, that is
either to reestablish compliance with the rules, or to punish unlawful behavior (or
both).”36

9.44 The Draft Decision provisionally proposed to impose an administrative fine in respect of the
ICB’s infringement of Article 25(1) of the GDPR. That Draft Decision made the provisional
finding that the administrative fine was necessary in respect of that infringement in order
to effectively pursue the objective of re-establishing compliance with Article 25(1) and in
providing an effective, proportionate and dissuasive response in the particular
circumstances of this case. The ICB submitted that its infringement of Article 25(1) of the
GDPR does not warrant the imposition of an administrative fine. In making this submission,

36
Article 29 Data Protection Working Party ‘Guidelines on the application and setting of administrative fines
for the purposes of Regulation 2016/679, at page 11.

34

the ICB highlighted how the Draft Decision’s objective in proposing an administrative fine
was to re-establish compliance. The ICB submitted that it has undertaken extensive
remediation measures, both during the DPC’s Inquiry and following the Draft Decision. In
those circumstances, the ICB submitted that would not be “effective, proportional, and
dissuasive with a view to re-establishing compliance as ICB is now in full compliance with
Article 25 of the GDPR.”37 The ICB submitted that the proposed reprimand alone was
proportionate in light of the remediation steps.

9.45 I have had regard to the extensive remediation measures implemented by the ICB since the
personal data breach. These measures reflect significant efforts from the ICB to re-establish
compliance with Article 25(1). Therefore, in deciding whether to impose an administrative
fine, I must consider the suitability of a fine for the purpose of re-establishing compliance
in light of those measures. I find that an administrative fine is necessary in respect of the
ICB’s infringement of Article 25(1), despite the remediation measures, in order to effectively
pursue the objective of re-establishing compliance with Article 25(1) and in providing an
effective, proportionate and dissuasive response in the particular circumstances of this case

9.46 Despite the remediation undertaken by the ICB, a fine is necessary in respect of the
objective of re-establishing compliance. Article 25(1) places a continuous obligation on
controllers to implement appropriate technical and organisational measures designed to
implement the principle of accuracy. The obligation in article 25(1) requires the ICB to
proactively, at both at the time of the determination of the means for processing and at the
time of the processing itself, assess the risk, the state of the art, the cost of implementation
and the nature, scope, context and purposes of its processing. An administrative fine is
effective and proportionate in dissuading non-compliance because such non-compliance
could flow from a failure on the part of the ICB to continually assess the appropriateness of
its measures at the time of the processing itself. It is not sufficient for the ICB to simply
respond to personal data breaches if, and when, they occur. The ICB must continually have
regard to future changes in the risk, the state of the art and it’s processing in ensuring that
it has implemented appropriate measures designed to implement all of the data-protection
principles. This is essential for compliance with Article 25(1). Ensuring compliance with this
obligation is particularly important in light of the nature of the ICB’s database. The 15,120
inaccurate closed loan records represented just 0.43% of the closed loans records held by
ICB in 2018. This illustrates the vastness of the database, which processes the personal data
of 2.8 million data subjects. As outlined above, the gravity of the infringement was severe,
and a large number of data subjects were affected, despite the fact that the number was
relatively low in the context of the total number of closed loan records held by the ICB. This
highlights the importance of dissuading future non-compliance. I have also had regard to
the negligent character of the infringement and the sensitive category of personal data
processed on the database. It is clear that non-compliance with Article 25(1) poses a
significant threat to the rights and freedoms of the data subjects whose personal data is
processed on the ICB’s database. Furthermore, I consider that a fine is also necessary when
considered in light of the need to achieve general deterrence and in ensuring that the ICB

37
ICB submissions on the Draft Decision, dated 23 February 2021, at page 22.

35

and other controllers operating databases with sensitive personal data are adequately
dissuaded from non-compliance with Article 25(1) of the GDPR. Therefore, an
administrative fine is effective and proportionate in re-establishing compliance and in
dissuading the ICB from failing to comply with its on-going obligations under article 25(1).

9.47 In making this decision to impose an administrative fine, I have had regard to the reprimand
made in this Decision. I have also had regard to all of the factors under Article 83(2)(a) – (j).
While the reprimand formally acknowledges the serious nature of the infringement of
Article 25(1) and is of utility in providing an effective and dissuasive response, I find that the
reprimand alone is not sufficient to pursue the objective of re-establishing compliance. I
have had regard to all of the corrective powers available to me as set out in Article 58(2) of
the GDPR. In light of the nature of the ICB’s database and the ongoing obligation under
Article 25(1) in respect of that database, I find that an administrative fine, in addition to the
reprimand, is effective, proportionate and dissuasive with a view to re-establishing
compliance and ensuring that the ICB continually maintains its obligations under that article.

9.48 Regarding the infringement of Articles 5(2) and 24(1) of the GDPR, I have had regard to how
the ICB’s failure to maintain a documented record of the testing undertaken in respect of
coding changes to the ICB’s database not only prevented the ICB from demonstrating its
compliance, but also prevented the DPC from assessing the adequacy of the testing actually
undertaken in respect of the coding change. I have balanced this with the moderate gravity
of the infringement and how the ICB has since undertaken a review of its testing
methodology. I have also had regard to the dissuasive effect of the reprimand in this
Decision, which, in the circumstances of this case, I find is effective, proportional and
dissuasive in respect of this infringement without the need for an additional administrative
fine. Therefore, I do not propose to impose an administrative fine in respect of the ICB’s
infringement of Articles 5(2) and 24(1) of the GDPR.

ii. The Permitted Range

9.49 Having decided that the infringement of Article 25(1) warrants the imposition of an
administrative fine in the circumstances of this case, I must next proceed to decide on the
amount of that fine. First, it is necessary to consider the appropriate cap for the fine as a
matter of law. The cap determines the permitted range for the fine, from a range of zero to
the cap. However, the cap is not a starting point for a fine. After identifying the permitted
range, it is necessary to calculate the fine.

9.50 Article 83(4) of the GDPR provides that infringements of the obligations of controllers
pursuant to, amongst others, Article 25(1) shall:

“…in accordance with paragraph 2, be subject to administrative fines up to 10 000 000
EUR, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover
of the preceding financial year, whichever is higher…”

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9.51 The turnover of the ICB in 2020 was as submitted by the ICB in its
submissions on the Draft Decision, and which reflects the ICB’s latest Management
Accounts. As regards the maximum amount for the fine that may be imposed in this case,
the relevant cap for any fine in respect of an infringement of Article 25(1) is the higher of
€10,000,000 or 2% of the annual turnover of the preceding financial year. Therefore, I am
satisfied that the cap for the ICB’s infringement is €10,000,000. This figure is not a starting
point, but rather the cap on the permitted range as provided for in Article 83(4) of the GDPR.

iii. Calculating the Administrative Fine

9.52 In the absence of specific EU-level guidelines on the calculation of fines in this context, I am
not bound to apply any particular methodology38. The methodology that I have followed is
intended to clearly and unequivocally set out the elements taken into account in calculating
the fine, thereby allowing the ICB, as the addressee, to understand the basis for the fine and
ensuring that the fine is calculated in a rational manner.

9.53 The methodology that I have followed in calculating the administrative fine is as follows.
The first step in calculating the administrative fine is to consider the permitted range and to
locate the infringement on that permitted range. In this regard, the cap provided for in
Article 83(4) is not a starting point for the fine. Rather, it is relevant to determining the
permitted range. The determination of where on the permitted range the appropriate figure
lies is made by reference to nature, gravity, and duration of the infringement, as considered
in relation to Article 83(2)(a) above, and the other aggravating factors. The determination
is made in the context of the objectives of re-establishing compliance, including through
deterrence, and to provide a proportionate response to the unlawful behaviour. The second
step in calculating the administrative fine is to apply the mitigating factors to reduce the
fine where applicable. Finally, the third step is to consider whether the figure arrived at is
“effective, proportionate and dissuasive” in the circumstances in accordance with Article
83(1) of the GDPR.

9.54 The Draft Decision set out a proposed range for the administrative fine and the factors to
be considered, and the methodology to be used when calculating the fine, in order to
provide the ICB with the opportunity comment in accordance with fair procedures. In its
submissions on the Draft Decision, the ICB submitted that the gravity of the infringement
was not severe, and rather that it was moderate to minimal. The ICB also submitted that
the DPC was incorrect to treat the negligent character of the infringement and the
sensitivity of the personal data affected as aggravating factors pursuant to article 83(2)(b)
and (g). For the reasons set out above in my consideration of article 83(2) (a), (b) and (g), I
do not accept these submissions. However, I accept the ICB’s submission that the specific
issues giving rise to the finding of the infringement of Article 25(1) in this Decision have now
been addressed by the ICB. I have also had due regard to the up to date financial position
of the ICB in calculating the fine, as submitted by the ICB in its submissions on the Draft

38
See by analogy Electrabel v Commission, T 332/09, ECLI:EU:T:2012:672, para 228, Marine Harvest ASA v
Commission, T-704/14, ECLI:EU:T:2017:753, para 450.

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Decision. The ICB also submitted that additional credit should be applied towards
mitigation. I have had regard to those submissions in assessing the factors in Article 83(2)(a)
– (k) above and I have increased the mitigating value where appropriate as detailed below.

9.55 As outlined above, the permitted range for the infringement of Article 25(1) is up to
€10,000,000. In locating the fine on the permitted range, I have had regard to the nature,
gravity and duration of the infringement as assessed in accordance with Article 83(2)(a)
above. I have also had regard to the aggravating factors, specifically the negligent character
of the infringement and the sensitivity of the personal data affected by the infringement as
assessed in accordance with Article 83(2)(b)&(g) above. I have also had regard to the up to
date economic situation of the ICB. I find that the figure of €220,000 is appropriate in the
circumstances of this case before applying mitigation.

9.56 I find that the mitigating factors warrant a significant reduction in the fine. Specifically, I
consider the factors identified above under Articles 83(2)(c), 83(2)(e), and 83(2)(f) of the
GDPR mitigating. To account for the action taken by the ICB to mitigate the damage suffered
by the data subjects, I have reduced the fine by €55,000 in accordance with Article 83(2)(c).
To account for the ICB’s lack of previous infringements, I have reduced the fine by €25,000
in accordance with Article 83(2)(e). In relation to the ICB’s cooperation with the DPC to
remedy the infringement and to mitigate its adverse effects, I have revised the mitigation
value that was proposed to reflect the ICB’s latest submissions on the Draft Decision. As
outlined above, I accept that the ICB has shown a high degree of cooperation, including by
implementing a comprehensive change management process that provides for testing and
a formal approval procedure for coding changes. I have reduced the fine by €50,000 to
reflect this in accordance with Article 83(2)(f). Thus, the total reductions in light of the
mitigating factors is €130,000. Therefore, the final figure for the administrative fine is
€90,000.

9.57 The final step is to consider whether the figure arrived at is “effective, proportionate and
dissuasive” in the circumstances in accordance with Article 83(1) of the GDPR. I consider
that the figure of €90,000 meets these requirements. In order for any fine to be effective, it
must reflect the circumstances of the individual case. The circumstances of this
infringement concerns the failure to adequately implement appropriate technical and
organisational measures designed to implement the principle of accuracy into a database
containing sensitive personal data. The resulting personal data breach included 1,062
inaccurate accounts being shared with ICB members and directly with data subjects. The
purpose of sharing the records with ICB members was to assist those financial institutions’
consideration of applications for credit. I consider that these circumstances require a
significant fine in order for it to be effective. In order for a fine to be dissuasive, it must
dissuade both the controller/processor concerned, as well as other controllers/processors
operating databases with sensitive personal data, from repeating the conduct concerned. I
am satisfied that the figure would be dissuasive to both the ICB and to other controllers and
processors. As regards the requirement for any fine to be proportionate, this requires me
to adjust the quantum of the fine to the minimum amount necessary to achieve the
objectives pursued by the GDPR. I am satisfied that the figure of €90,000 for the fine does

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not exceed what is necessary to enforce compliance with the GDPR, taking into account the
impact of the infringements on the data subject rights enshrined in the GDPR. The figure of
€90,000 amounts to 0.9% of the cap available and 2% of the ICB’s turnover. Accordingly, I
am satisfied that the amount of the fine is effective, proportionate and dissuasive, taking
into account all of the circumstances of the Inquiry.

10. Right of Appeal

10.1 This Decision is issued in accordance with Section 111 of the 2018 Act. Pursuant to Section
150(5) of the 2018 Act, the ICB has the right to appeal against this Decision within 28 days
from the date on which notice of the Decision is received by it. Furthermore, as this Decision
includes a decision to impose an administrative fine, pursuant to Section 142 of the 2018
Act, the ICB also has the right to appeal against the decision to impose an administrative
fine within 28 days from the date on which notice of the decision is given to it.

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Appendix: Schedule of Materials Considered for the Purposes
of this Decision
The Case Officer delivered the Final Inquiry Report to me on 10 September 2020. I also had regard to
all of the correspondence, submissions, and documentation gathered during the Inquiry and the
decision-making stage, including:

(i) The DPC’s Final Inquiry Report, Inquiry Reference IN-19-7-2;
(ii) Documentation concerning the breach notification BN-18-9-45, including the breach
notification form and updates, the emails between the ICB and DPC;
(iii) The ICB Members’ Technical Manual, dated August 2018;
(iv) The ICB Members’ Technical Manual, dated July 2015;
(v) The Irish Credit Bureau Change Request – PP Update, dated 28 June 2018;
(vi) The Irish Credit Bureau Change Request – PP Update – C and T fix, dated 30 August
2018;
(vii) Standard ICB membership contract and GDPR Compliance Amendment Agreement;
(viii) Redacted email from an ICB member to the ICB, dated 27 August 2018, that gave rise
to the ICB’s investigation that led to the discovery of the personal data breach;
(ix) Standard ICB Amendment to Terms of Membership, dated 2018;
(x) Data Protection Commission Regulatory Investigator’s note of phone call with the ICB,
dated 26 October 2018 at 11 am;
(xi) ICB GDPR Fair Processing Notice, dated 23 February 2018;
(xii) ICB Records of Data processing Activities, dated 3 May 2018;
(xiii) DPC Notice of Commencement of an Inquiry, dated 19 July 2019;
(xiv) The ICB’s Response to the Commencement letter, dated 15 August 2019, including
the “Queries and Answers” document;
(xv) ICB internal email, dated 31 August 2018, titled “Issue with ‘C’ and the latest balance
date”;
(xvi) ICB internal email thread, dated between 4 - 6 September 2018, titled “Data related
to recent data integrity breach”;
(xvii) ICB internal email, dated 6 September 2018, titled “BOICC purge date query”;
(xviii) Blank ICB Data Protection Impact Assessment (DPIA) for Irish Credit Bureau DAC;
(xix) ICB GDPR Awareness Training for PI Team slides, dated March 2018;
(xx) BSI Certificate of GDPR training, dated 10 October 2019;
(xxi) BSI EU GDPR Foundation Level Training slides, undated;
(xxii) Certification Europe, Irish Credit Bureau Surveillance Assessment Report ISO
27001:2013, dated 26 April 2018;
(xxiii) Letter from DPC to ICB, dated 19 November 2019, posing additional queries;
(xxiv) ICB Response to the additional questions from DPC on inquiry IN-19-7-2, received 3
December 2019;
(xxv) PWC GDPR Readiness Assessment Report in respect of the ICB, dated June 2017;
(xxvi) ICB document titled “ICB Implementation of the PWC recommendations in their GDPR
Readiness Assessment Report June 2017”;
(xxvii) Letter from DPC to ICB, dated 11 March 2020;

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(xxviii) ICB Response to the additional questions from DPC on inquiry IN-19-7-2, received 24
March 2020;
(xxix) Irish Credit Bureau Sample Credit Report;
(xxx) The ISO’s “Code of practice for information security controls” ,ISO/IEC 27002:2013(E),
Second edition, 2013-10-01;
(xxxi) The ISO’s “Information security risk management” ISO/IEC 27005:2018(E), Third
edition, July 2018;
(xxxii) Complaint C-18-8-133 form received by the DPC and related correspondence;
(xxxiii) ICB Training Manual for End User Training, dated 18 May 2018;
(xxxiv) DPC letter to ICB, dated 23 July 2020, enclosing the Draft Inquiry Report;
(xxxv) DPC Draft Inquiry Report, Irish Credit Bureau DAC, Inquiry Reference: IN-19-07-02,
Report Issued 23 July 2020;
(xxxvi) ICB submissions on the Draft Inquiry Report, dated 20 August 2020;
(xxxvii) ICB document, titled “A12 Operations Security”, dated 15 December 2020; and
(xxxviii) Email from the ICB to the DPC enclosing its submissions on the Draft Decision, dated
23 February 2021;
(xxxix) ICB submissions on the Draft Decision, titled “Response to Draft Decision 02 February
2021”, dated 23 February 2021;
(xl) The ICB’s original change control and testing policies, in place June – August 2018
(appendix 1 to the ICB’s submissions on the Draft Decision);
(xli) The ICB’s change control and testing policies post 20 August 2020 (appendix 2 to the
ICB’s submissions on the Draft Decision);
(xlii) The ICB’s Operations Security Policy, “ISO27001:2013 Reference A12 Operations
Security”, Rev 1.7, dated 15 December 2020;
(xliii) The ICB’s Change Management Policy, Rev 1.4, dated 17 February 2021;
(xliv) The ICB’s DPIA Template, submitted as part of appendix 3 to the ICB’s submissions on
the Draft Decision;
(xlv) The ICB’s Systemic Change Control document, Rev 1.5, dated 18 February 2021;
(xlvi) The ICB’s Organisational Change Control document, Rev 1.5, dated 18 February 2021;
(xlvii) The ICB’s Change Request Control Log detailing 1 September 2020 – 7 December
2020;
(xlviii) The ICB’s Implementation Plan Template, Rev 1.2, dated 11 February 2021;
(xlix) The ICB’s Testing Policy and Procedures, Rev 1.7, dated 18 February 2021;
(l) The ICB’s Test Plan Template, Rev 1.1, dated 11 February 2021; and
(li) The ICB’s Test Case Template, submitted as part of appendix 3 to the ICB’s
submissions on the Draft Decision.

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