Elected members hamstrung in the performance of duties

Elected members hamstrung in the performance of duties

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Cllr Christy Curtin. Photo: © Pat Flynn 2016

Data protection laws are affecting Clare councillors from performing their duties, elected members of the county’s local authority have claimed.

A motion from Independent Cllr Christy Curtin at the December meeting of Clare County Council asked “That the Chief Executive outline the circumstances under the relevant section of the Data Protection Acts 1988 and 2003 whereby restrictions on disclosure are lifted to allow elected members of the Council to access information on file in order to fully discharge their responsibilities as members of the corporate authority.”

In response, Senior Executive Officer, Carmel Greene informed Curtin that Section 8 of the Data Protection Act, 1988 as amended allows for disclosure of personal data in certain cases. A part of Section 8 reads “Any restrictions in this Act on the disclosure of personal data do not apply if the processing is (e) required by or under any enactment or by a rule of law or order of a court or (h) made at the request or with the consent of the data subject or a person acting on his behalf”.

Ms Greene also referred to a Guidance Note for Data Controllers on the release of personal data to public representatives in 2007 which was released by the Data Protection Commissioner.

It states “Where a public representative makes a written representation on behalf of a constituent, the organisation can generally assume that the constituent has given consent for the release of personal data necessary to respond to the representation. As the organisation is accountable for personal data it has chosen to release, it should be satisfied that it is reasonable to assume that the individual whose personal data is being released would have no objection to such release through a public representative. In most cases, this is unlikely to be an issue”.

“However, there will be cases where it would be appropriate for the organisation to check with the public representative, or the individual whose personal data is being released, that such release is not going to give rise to later complaints about breach of the Data Protection Acts”.

Clare County Council’s Carmel Greene told councillors that new Data Protection legislation has been passed by the EU. The General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) will replace the data protection directive 95/46/EC)(transposed into Irish Law as the Data Protection Acts 1988 & 2003), it was adopted in April 27th of this year and will come into practice in May 2018.

Cllr Curtin was appreciative of the reply from Ms Greene but highlighted “it is imperative that we will be in the position of relevant information to ensure decision making is in the best interests of the council and the people we represent”. He felt that for him and fellow elected members to fulfill their roles obstacles should not be in their way and labelled the regulations as a “deficit in democracy”.

Fellow Independent Cllr Gerry Flynn stated that some forms of Data Protection leave councillors “hamstrung in the performances of our duties”.

James Breen recalled that there was never any problems obtaining information in the past but noticed that it was becoming increasingly difficult today. The Kilnamona Cllr wants to see a proposal put forward to all councils and the Minister for Social Protection, Leo Varadkar.

Responding to these comments, Director of Service with Clare County Council, Gerard Dollard stressed “the data protection commissioner has made it clear that any sort of personal information cannot be released”. He said the council was “confined to legislation at the moment”.

Fine Gael’s Johnny Flynn said “We need to know the information on certain aspects of council business. If someone owes a corporate body €50,000 we should know about”.

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