Data Protection Act 1988

SECOND SCHEDULE

The Data Protection Commissioner

F65 [ ]

Annotations:

Amendments:

F65

Repealed other than for certain excepted purposes (25.05.2018) by Data Protection Act 2018 (7/2018), s. 7(1)(e), (4), S.I. No. 174 of 2018. The excepted purposes in subs. (4) are 7/2018, s. 8(1)(b), (2) and (3). See C-note below.

F66

Inserted (25.03.2004) by Public Service Superannuation (Miscellaneous Provisions) Act 2004 (7/2004), s. 3 and sch. 2 part 2, commenced on enactment.

F67

Substituted (6.10.2004) by Public Service Management (Recruitment and Appointments) Act 2004 (33/2004), s. 61(1) and sch. 2 part 1, commenced on enactment.

F68

Inserted (1.07.2003) by Data Protection (Amendment) Act 2003 (6/2003), s. 20, S.I. No. 207 of 2003.

Modifications (not altering text):

C87

Schedule repealed, but retained (see below) for certain excepted purposes (25.05.2018) by Data Protection Act 2018 (7/2018), s. 7(1)(e), (4), S.I. No. 174 of 2018. The excepted purposes in subs. (4) are 7/2018, s. 8(1)(b) (the processing of such data under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014) or the Vehicle Registration Data (Automated Searching and Exchange) Act 2018 (5/2018) to the extent that the Act of 1988 is applied in those Acts) and s. 8(2), (3) (transitional provisions). Note Data Protection Act 2018 (7/2018), s. 14(3): A reference in the Act of 1988 (other than in section 1(3)(c)(iii) in so far as it refers to the Commissioner of the Garda Síochána) to the Commissioner shall be construed as a reference to the Commission.

1. The Commissioner shall be a body corporate and shall be independent in the performance of his functions.

2. (1) The Commissioner shall be appointed by the Government and, subject to the provisions of this Schedule, shall hold office upon such terms and conditions as the Government may determine.

(2) The Commissioner—

( a) may at any time resign his office as Commissioner by letter addressed to the Secretary to the Government and the resignation shall take effect on and from the date of receipt of the letter,

( b) may at any time be removed from office by the Government if, in the opinion of the Government, he has become incapable through ill-health of effectively performing his functions or has committed stated misbehaviour, and

( c) shall, in any case, vacate the office of Commissioner on reaching the age of 65 years F66 [ : but where the person is a new entrant (within the meaning of the Public Service Superannuation (Miscellaneous Provisions) Act 2004) appointed on or after 1 April 2004, then the requirement to vacate office on grounds of age shall not apply. ].

3. The term of office of a person appointed to be the Commissioner shall be such term not exceeding 5 years as the Government may determine at the time of his appointment and, subject to the provisions of this Schedule, he shall be eligible for re-appointment to the office.

4. (1) Where the Commissioner is—

( a) nominated as a member of Seanad Éireann,

( b) elected as a member of either House of the Oireachtas, the European Parliament or a local authority, or

( c) regarded pursuant to section 15 (inserted by the European Assembly Elections Act, 1984) of the European Assembly Elections Act, 1977, as having been elected to such Parliament to fill a vacancy,

he shall thereupon cease to be the Commissioner.

(2) A person who is for the time being—

(i) entitled under the standing orders of either House of the Oireachtas to sit therein,

(ii) a member of the European Parliament, or

(iii) entitled under the standing orders of a local authority to sit therein,

shall, while he is so entitled or is such a member, be disqualified for holding the office of Commissioner.

5. The Commissioner shall not hold any other office or employment in respect of which emoluments are payable.

6. There shall be paid to the Commissioner, out of moneys provided by the Oireachtas, such remuneration and allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

7. ( a) The Minister shall, with the consent of the Minister for Finance, make and carry out, in accordance with its terms, a scheme or schemes for the granting of pensions, gratuities or other allowances on retirement or death to or in respect of persons who have held the office of Commissioner.

( b) The Minister may, with the consent of the Minister for Finance, at any time make and carry out, in accordance with its terms, a scheme or schemes amending or revoking a scheme under this paragraph.

( c) A scheme under this paragraph shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

8. (1) The Minister may appoint to be members of the staff of the Commissioner such number of persons as may be determined from time to time by the Minister, with the consent of the Minister for Finance.

(2) Members of the staff of the Commissioner shall be civil servants.

(3) The functions of the Commissioner under this Act may be performed during his temporary absence by such member of the staff of the Commissioner as he may designate for that purpose.

(4) The Minister may delegate to the Commissioner the powers exercisable by him under the F67 [ Public Service Management (Recruitment and Appointments) Act 2004 ], and the Civil Service Regulation Acts, 1956 and 1958, as the appropriate authority in relation to members of the staff of the Commissioner and, if he does so, then so long as the delegation remains in force—

( a) those powers shall, in lieu of being exercisable by the Minister, be exercisable by the Commissioner, and

( b) the Commissioner shall, in lieu of the Minister, be for the purposes of this Act the appropriate authority in relation to members of the staff of the Commissioner.

9. (1) The Commissioner shall keep in such form as may be approved of by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of all moneys received or expended by him and all such special accounts (if any) as the Minister, with the consent of the Minister for Finance, may direct.

(2) Accounts kept in pursuance of this paragraph in respect of each year shall be submitted by the Commissioner in the following year on a date (not later than a date specified by the Minister) to the Comptroller and Auditor General for audit and, as soon as may be after the audit, a copy of those accounts, or of such extracts from those accounts as the Minister may specify, together with the report of the Comptroller and Auditor General on the accounts, shall be presented by the Commissioner to the Minister who shall cause copies of the documents presented to him to be laid before each House of the Oireachtas.

F68 [ 10. (1) A person who holds or held the office of Commissioner or who is or was a member of the staff of the Commissioner shall not disclose to a person other than the Commissioner or such a member any information that is obtained by him or her in his capacity as Commissioner or as such a member that could reasonably be regarded as confidential without the consent of the person to whom it relates.

(2) A person who contravenes subparagraph (1) of this paragraph shall be guilty of an offence. ]

Editorial Notes:

E76

Power pursuant to s. 9 and sch. para. 7(a) exercised (25.05.1993) by Data Protection Commissioner Superannuation Scheme 1993 (S.I. No. 141 of 1993). Continued in force (25.05.2018) by Data Protection Act 2018 (7/2018), s. 67, S.I. No. 174 of 2018, as if made under 7/2018, s. 22 and (a) a person who was a member of the scheme ... shall continue to be a member, and (b) the provisions of that section shall apply accordingly.