Conclusion on fair procedures case against Commission
- The applicant, as he properly accepts, had no right to be awarded the job. Security clearance was flagged in the booklet as a likely step and was as a matter of common sense engaged in by the Commission in respect of a manifestly security-sensitive position. The Commission in its communications with the applicant at all times made clear that there was a process of security clearance ongoing and kept him in the loop in relation to that. That security clearance process did not step beyond any reasonable or lawful bounds. It in fact correctly established that the applicant was the subject of an ongoing military police investigation into prima facie serious matters. AGS in fairness to the applicant did not jump to refusing security clearance but rather reasonably awaited detail as to the outcome of the military police investigation. That investigation took longer than originally envisaged. When objectively viewed through the prism of what in fact was going on in the period May to November 2021, I do not see how the applicant has any ground for legal complaint in terms of the lawfulness of the process or how that process was, in any sense of the word, unfair.
- I should also note for completeness that the applicant failed to avail of the review process set out in the booklet for the competition. He complained that he was unable to avail of the review process because he did not have sufficient information as to the basis of the Commission's decision of 26 November 2021. I do not accept that this is a good ground for not availing of the review process. He was in as good a position in the days following the decision to terminate his candidature to make a complaint to the Commission, by way of the review mechanism, that the decision was wrong as he was when he launched these judicial review proceedings. Given the necessarily limited role of judicial review in relation to a job recruitment process such as this, it is all the more important that dissatisfied candidates avail of any independent review mechanism provided for before having recourse to the High Court.
Challenge to decision of AGS of 2 December 2021
- The applicant was granted liberty to amend his statement of grounds in June 2022 (with a follow up procedural order in relation to the logistics of presentation of the amended grounds made in November 2022). In his amended statement of grounds, he sought an order of certiorari quashing "the purported decision or non-disclosure of a decision and the letter dated 2 December 2021" (being the letter from the security and intelligence section of Garda headquarters to the Commission in which it was stated that AGS were not in a position to give security clearance for the applicant).
- The applicant complains that this letter was the manifestation of a "non-process". Assuming for present purposes that the decision embodied in the letter of 2 December 2021 is amenable to judicial review, I do not see that it is infected by any unlawfulness. The letter stated that "at present we are not in a position to issue security vetting clearance for [the applicant]". That was factually correct and a perfectly reasonable decision for AGS to arrive at in light of their knowledge of the ongoing military police investigation. The letter represented the outcome of a process whereby, as explained by Inspector Casserly, the AGS had patiently engaged with the military police over a period of a number of months to ascertain the likely outcome of the military police investigation. As already explained, AGS had a lawful authority to conduct the security clearance exercise. I see no basis for the order of certiorari sought in the circumstances.
The applicant's data protection case
- The applicant belatedly sought to introduce a data protection dimension to his case. In his amended statement of grounds, the applicant sought a declaration "that the Commission may not rely on information obtained in circumstances of a failure to act promptly, expeditiously and with due regard to the applicant's rights under the data protection acts and the Constitution."
- The only ground in the grounds for relief which referenced data protection was the following ground:
"notwithstanding that the applicant's nomination had been forwarded to the department of An Taoiseach, a request was made to the security and intelligence section Garda headquarters for security clearance unbeknownst to the applicant who was unaware of the existence of such a unit and had not consented to this process. There is no statutory basis for this process. AGS was required to ascertain the applicant's explicit consent to this process under section 36(1)(a) of the Data Protection Act 2018 and Article 4(11) GDPR but failed to obtain same."
- As can be seen, while the pleaded ground in support of the declaratory relief sought focused on AGS, the declaratory relief is clearly directed towards the Commission. While section 117 of the Data Protection Act 2018 ("the 2018 Act") grants a jurisdiction to this court to grant inter alia declaratory relief in respect of a data protection infringement, I was not addressed on the circumstances in which such a declaration would be appropriate, particularly where no data protection breach process under the 2018 Act has been engaged in by the DPC.
- The manner in which the data protection case was pleaded, and was the subject of (very limited) oral and written submissions, adds to my concerns. The respondents legitimately complained that the applicant had not specified the nature of the data said to be the subject of the infringement and the precise infringement involved. The applicant's position in general terms was that his data had been processed by AGS without his consent. However he did not specify precisely the personal data said to be in issue. No relief was sought against AGS in respect of this alleged infringement. Counsel for AGS made submissions as best he could in the face of the lack of clarity of the applicant's data protection breach case, and emphasised that issues relating to national security were either outside GDPR altogether, or were the subject of appropriate exemptions from the consent principle.
- Ultimately it seems to me that the applicant's application for declaratory relief in relation to alleged data protection breaches as regards the Commission has not been made out on its own terms. The applicant has not identified what information the Commission improperly relied upon as flowing from the alleged data protection breach. The Court did not even have before it the Garda vetting form in fact signed by the applicant. Ultimately, the Commission was not furnished with any personal information relating to the applicant other than updates to the effect that the security clearance process in relation to him was ongoing. There was no evidence for example that the Commission was furnished with the military police investigation file or other data to which is was not reasonably entitled. The Commission decided to terminate the applicant's preferred candidacy in circumstances where it had not received security clearance for the applicant. That was simply a matter of fact and did not on the face of it entail any reliance on unlawfully obtained personal data.
- While issues under GDPR could well arise as to appropriate application of data protection principles to various security clearance and national security contexts, I would prefer to hold over consideration of such issues to a case in which they are properly engaged on the evidence and pleadings and are the subject of full and relevant legal submission. This is not such a case.
Conclusion
- In my view, for the reasons set out above, the applicant has not made out a case for any of the reliefs he seeks in respect of the Commission's decision of 26 November 2021, the AGS communication of its position on security clearance for the applicant contained in its letter of 2 December 2021, or the decision-making processes leading to those decisions.
- I will accordingly make an order dismissing the proceedings in their entirety.
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