THE DATA PROTECTION Commission has said it plans to proceed with enforcement action following the government’s refusal to comply with recommendations made in a report about the legality of the Public Services Card (PSC).

The government is set to appeal the findings of the DPC’s landmark report, which found that there is no lawful basis for a person to be required to get a PSC for anything other than social welfare payments and benefits. 

The government has yet to publish the report, despite numerous calls to do so. 

Graham Doyle, the DPC’s Head of Communications, told TheJournal.ie the Commission has declined the Department of Employment Affairs and Social Protection’s (DEASP) request for a meeting and plans to proceed with enforcement action. 

“I can confirm that we have this evening responded to the Department and have declined their request for a meeting. We have once again called on the Department to publish the final report immediately in the public interest.

As for next steps, we have informed the Department that due to their stated refusal to accept the findings of our final report we will now proceed to enforcement action.

A spokesperson for the DEASP told TheJournal.ie: “The Department has received the correspondence from the DPC this evening and is considering its contents.”

Yesterday, Minister Regina Doherty said the government would be challenging the findings of the landmark inquiry in court.

Furthermore, she signalled the government would be defying the direction from the DPC and continue to retain the data of people who apply for the PSC.

“My legal advice is incredibly strong,” Doherty told RTÉ Radio One’s Morning Ireland, adding that this advice says there is a “clear and unambiguous legal basis” to continue operating the card as has been done up to now.

“We believe that we do have legal rights and legislation to underpin exactly what was anticipated,” she said.

Months of controversy 

The Data Protection Commissioner Helen Dixon began her investigation into the legality of the PSC in October 2017, after months of controversy over the card. 

The spotlight was put firmly on the PSC back in August 2017, when the Irish Times reported that a woman had her pension cut because she refused to get a card.

Over the past three years, TheJournal.ie has also highlighted other cases such as when a woman was asked for an adoption cert when applying for a PSC; another where a woman was asked how long she’d been living with her partner when applying for one; and people even being denied one because they were adopted.

Dixon gave the DEASP a draft of the report in August 2018. She told TheJournal.ie last month that the main findings in this draft aren’t significantly different from the main findings in the finished report.

In any case, the department sent back its response to the draft in November 2018 addressing what was in the report. 

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Finally, then, in August 2019 the report was finalised and sent to the department. 

Dixon made three main findings:

• There’s no lawful basis for a person to be told they must have a Public Services Card to access a State service, except for social welfare and benefits.
• The DEASP has no lawful basis for keeping documents provided, such as utility bills, for the 3.2 million cards issued so far. That data must now be destroyed.
• And the department also hasn’t been sufficiently transparent in terms of the personal data it processes in the context of the PSC.

Also included in these findings was a direction to the department for a progress report within 21 days (ie tomorrow) on the removal of the PSC as a requirement for non-welfare related services and an implementation plan for the second finding on the retention of documents within six weeks. 

Although it took several weeks to respond, the government signalled this week that it will be challenging these findings. 

A joint statement from the DEASP and the Department of Public Expenditure and Reform said: 

Following very careful consideration of the report and having taken the advice of the Attorney General’s Office, the ministers informed government that they are satisfied that the processing of personal data related to the PSC does in fact have a strong legal basis, the retention of data is lawful and that the information provided to users does satisfy the requirements of transparency.

“On this basis the Ministers believe that it would be inappropriate, and potentially unlawful, to withdraw or modify the use of the PSC or the data processes that underpin it as has been requested by the DPC.”

With reporting by Órla Ryan