O'Neill v Revenue Commissioners (Approved)

Factual and Procedural Background

This opinion concerns an interlocutory application by the Plaintiff seeking either (a) an order that his substantive judicial review proceedings be heard otherwise than in public (in camera), or (b) an order directing the anonymisation of those proceedings. The substantive judicial review challenges the Defendant's refusal to erase personal data related to the Plaintiff's 2007 tax return under the right to erasure ("right to be forgotten") pursuant to Article 17 of the General Data Protection Regulation (GDPR).

The Plaintiff was granted leave to apply for judicial review on 31 May 2021 to seek various reliefs, including mandamus orders requiring the Defendant to comply with GDPR provisions, the EU Charter, the Taxes Consolidation Act 1997, constitutional rights to privacy, and the doctrine of proportionality concerning data processing related to the 2007 tax year. The Plaintiff also sought ancillary reliefs.

The Plaintiff filed two notices of motion dated 5 December 2022 and 12 December 2023, respectively, seeking anonymisation or a hearing in camera. The Plaintiff is litigating in person, while the Defendant was represented by counsel.

Previously, the Plaintiff had reached terms of settlement with the Defendant in 2016 concerning certain tax assessments. The Defendant declined the Plaintiff's request to erase the 2007 tax data, citing legal obligations under the Taxes Consolidation Act 1997 and the GDPR exceptions allowing retention of personal data for compliance with legal obligations.

Legal Issues Presented

1. Whether the Plaintiff's substantive judicial review proceedings should be heard in camera (otherwise than in public).
2. Whether the proceedings should be anonymised to protect the Plaintiff's identity.
3. The applicability and scope of exceptions to the constitutional principle that justice be administered in public under Article 34.1 of the Constitution.
4. The interpretation and application of GDPR rights, particularly the right to erasure under Article 17, in the context of tax data retention and judicial review proceedings.
5. The relevance and applicability of the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) to the Plaintiff's claims.
6. The extent to which statutory provisions such as section 156 of the Data Protection Act 2018 allow for hearings to be held otherwise than in public.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends that without anonymisation or an in camera hearing, the right to be forgotten would be rendered meaningless as publicity of the proceedings would harm his reputation as a compliant taxpayer.
• The Plaintiff emphasizes that the case concerns data protection rights rather than tax matters and should be viewed primarily through the prism of the EU Charter and the ECHR.
• The Plaintiff relies on case law including Nowak v Data Protection Commissioner, GD v Commissioner of An Gárda Síochána, and Google Spain SL v AEPD to support the right to erasure and privacy protections.
• The Plaintiff cites the decision in NT1 v Google LLC for the proposition that anonymity is necessary to prevent the very publicity the claimants seek to avoid.
• The Plaintiff argues that the Defendant has no corresponding Article 10 ECHR (freedom of expression) rights that outweigh his Article 8 ECHR rights (right to privacy and reputation).
• The Plaintiff submits that the refusal to erase data and the public nature of the proceedings would cause irreparable damage to his reputation and livelihood.
• The Plaintiff invokes Article 47 of the EU Charter (right to an effective remedy and fair trial) and Article 79 of the GDPR (right to an effective judicial remedy).

Defendant's Arguments

• The Defendant submits that the Plaintiff has not met any established statutory or common law exceptions to the constitutional principle that justice must be administered in public.
• The Defendant points out that much of the Plaintiff's 2007 tax data was already subject to public determinations, including a published Supreme Court decision.
• The Defendant relies on statutory confidentiality provisions under the Taxes Consolidation Act 1997, which protect taxpayer information but also provide exceptions for lawful disclosure.
• The Defendant argues that tax appeals are generally required to be held in public, with limited exceptions, and that any case stated to the High Court must be held in public.
• The Defendant contends that section 156 of the Data Protection Act 2018 applies to tortious data protection actions, not judicial review proceedings, making the Plaintiff's reliance on it misconceived.
• The Defendant refers to case law emphasizing strict construction of exceptions to public hearings and the constitutional imperative of open justice.
• The Defendant submits that the Plaintiff's application is retrospective and that the Plaintiff has brought his tax affairs into focus by initiating the proceedings publicly.
• The Defendant highlights that the Plaintiff chose judicial review over a complaint to the Data Protection Commissioner, and that the substantive proceedings would not be unfair if held publicly.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the constitutional principle under Article 34.1 that justice must be administered in public, allowing exceptions only in strictly construed, special, and limited circumstances. The Court reviewed the Plaintiff’s reliance on the EU Charter, ECHR, and GDPR rights, particularly the right to erasure, but emphasized that these rights must be balanced against constitutional requirements of open justice and statutory provisions governing tax information confidentiality.

The Court considered the Plaintiff’s arguments about reputational harm and the potential nullification of the right to be forgotten if the proceedings were public. However, it found that the Plaintiff had not demonstrated that the fairness of the proceedings would be compromised by publicity, which is a critical threshold for departing from the public hearing rule.

The Court analysed relevant statutory provisions, including the Taxes Consolidation Act 1997 and the Data Protection Act 2018, concluding that the latter’s section 156 allowing hearings otherwise than in public applies only to data protection actions, not judicial review proceedings as brought by the Plaintiff.

The Court examined case law, notably Doe & Doe v The Revenue Commissioners and Gilchrist v Sunday Newspapers Ltd, emphasizing that the constitutional presumption of public hearings is paramount and that exceptions require clear and pressing circumstances which were not present here. The Court rejected the Plaintiff’s retrospective application for anonymisation and in camera hearing after the proceedings had already been conducted publicly on multiple occasions.

In balancing the competing interests, the Court found no sufficient justification to depart from the constitutional standard of open justice. It also noted that the Plaintiff’s tax affairs had already been subject to public judicial determinations, diminishing the rationale for anonymisation.

Holding and Implications

The Court REFUSED the Plaintiff’s interlocutory application for an order that the substantive judicial review proceedings be heard otherwise than in public (in camera) and also refused the application that the proceedings be anonymised.

The direct effect of this decision is that the Plaintiff’s judicial review proceedings challenging the Defendant’s refusal to erase the 2007 tax data will proceed fully in public and under the Plaintiff’s name. The Court did not find grounds to set any new precedent altering the constitutional principle of open justice or the statutory framework governing such proceedings. The Plaintiff retains the right to pursue his substantive claims within this public framework.