Complaint regarding the legality of the current Primary Online Database scheme as it applies to Junior Infants

Dear Sirs,

I am writing to you to object to operation of the Primary Online Database scheme as it applies to Junior Infant students.

My daughter commenced her education this academic year, and the demand set out in Circular 25/2015 by the Department of Education that her data be transferred from her school into the Primary Online Database or the funding for her education will be withheld is ultra vires the Minister’s powers.

I note that following my previous complaint in January of 2015 regarding the Primary Online Database, the Department has made repeated changes to its terms. As part of those changes, the assertion made by your Department and the Minister for Education that it was not possible to fund the education of children whose parents did not consent to the transfer of their data to the POD has been proved to be inaccurate and has been abandoned in Circular 25/2015.

It is now acknowledged that the POD scheme is irrelevant to the department’s capacity to fund the education of primary school children. Despite that, the threat to specifically defund Junior Infants- such as my daughter- by a misapplication of Section 12 of the Education Act 1998 remains.

Contrary to the Department’s assertion (made to me by email of Ms. XXXX of the Statistics Section dated 26th January 2015) Section 12 of the Education Act 1998 does not permit the Minister for Education to take arbitrary decisions relating to the funding of children’s education. Any decision on funding under that section requires the prior formal concurrence of the Minister for Finance (Per Section 12(1)). No such concurrence is appended or referred to in Circular 25/2015, making the threat by the Minister to defund the education of Junior Infants whose parents withheld consent for the transfer of their data ultra vires Ms. O’Sullivan’s powers.

It therefore is an unreasonable and unnecessary act to threaten the defunding of Junior Infants only in Circular 25/2015, when the only previous basis for such a threat has been proved inaccurate.

Furthermore, I wish to point out that, following the Judgment of the Court of Justice of the European Union in the Bara case (Case No. C-201/14), use by a member state of data gathered by one emanation for a particular purpose may not be combined into a new database with new uses, even if that new database is grounded in domestic legislation,

The court found

“Articles 10, 11 and 13 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, must be interpreted as precluding national measures, such as those at issue in the main proceedings, which allow a public administrative body of a Member State to transfer personal data to another public administrative body and their subsequent processing, without the data subjects having been informed of that transfer or processing.”

As the nature of the processing of the POD data is inherently open-ended, with onward sharing and processing of the data permitted but not specified, the entire Primary Online Database is illegal under EU law.

Finally, I should note that, quite apart from the most recent CJEU caselaw, SI 317/2015 which purported to provide the legal basis for the transfer of children’s data from schools to the Department of Education is ultra vires Section 266 of the Social Welfare Consolidation Act 2005, its own enabling act.

Transfers of data under Section 266 are only permitted “where that Minister requires the information for the purpose of enabling him or her to provide education”.

Clearly there is no such requirement in respect of the Primary Online Database transfers, as children have been and will continue to be educated without POD. This is recognised by the terms of the SI itself, which does not assert such transfers are necessary for the provision of education.

Rather it merely says such transfers as it sets out are “to further assist the Minister for Education and Skills to adequately monitor the progress of students through the education system”.

Further and in the alternative it would be perverse if a provision which could only be within the provisions of S266 if it was nessecary to enable the provision of education were to be relied upon to justify a legal threat to defund that education.

This means that there is neither a legitimate domestic basis for the data transfers from schools to POD, nor post-Bara, any capacity to provide one under the current Primary Online Database system which is compatible with the state’s duties under the Charter of Fundamental Rights and the Data Protection Directive.

I therefore am requesting that the Department of Education confirm within 10 days that the terms of Circular 25/2015 have been amended to meet the State’s legal obligations to provide for the continuation of my daughter’s education without financial threat or impediment and to vindicate her rights under the Data Protection Directive and the Charter of Fundamental Rights.

In the event that I do not receive such confirmation, I will forward this correspondence to the Data Protection Commissioner, who is obliged (as confirmed by the CJEU in the recent Schrems case) to take such enforcement actions-including judicial action against the Minister for Education to set aside domestic laws- as are required to vindicate my daughter’s rights.

Yours faithfully,

Simon McGarr

Primary Online Database: POD now (mostly) not compulsory (for now)

Ever since the introduction of the Primary Online Database of schoolchildren by the Department of Education, the Department and its Minister have been eager to point out that any parent who refused to allow a child’s data to be transferred would see that child’s education defunded.

Well, for all children other than this week’s crop of new Junior Infants, that threat has now collapsed. This is despite the Minister and her department having claimed that the drastic threat of defunding was because it simply wasn’t possible to give grants without a child’s full data being transferred.

“there is no mechanism for separate payment and allocation to schools for pupils that are not on POD, and from a practical point of view it is difficult to see how such a system could work in practice.”
Minister for Education, Jan O’Sullivan

Oddly, as the prospect of defunding the education of 30% of the nation’s children in the run up to an election loomed large, the Department discovered it could, after all, pay for a child’s education without all its POD data.

The 2nd attempt to make the POD legal, Department of Education Circular No. 25/2015 dropped the defunding threat for all children other than this year’s Junior Infants.

Paragraph 4.2(a-b) of the Circular:

a. Parents/guardians who continue to object to the onward provision of data to POD need to put their objections in writing to the school in order for their wishes to be carried out. Note that verbal objections will not be sufficient in this regard, as schools will be required by the Department to maintain written records of objections, and parents who do not put their objections in writing should be informed by the school that their record will be otherwise transferred to POD within a four week timeframe. Parents/guardians who object should be given every opportunity to provide their objections in writing to the school.

b. Schools that are in receipt of a letter from a parent outlining their objections to the onward provision of data to POD can create a partial record for that pupil on POD, using the guidelines available on request from the POD Helpdesk. This will ensure that a record is created for the pupil which will be counted for grant payments and teacher allocation purposes.

So, once you’ve written and put “your objections” in writing to the school, there should be only whatever the bare minimum of data the “POD Helpdesk” is seeking transferred.

For your convenience, here’s a sample letter you could use. Insert your own words as appropriate.

Dear Principal,

I write further to the proposed transfer of data regarding my child (insert your child’s name here) to the Department of Education as part of the Primary Online Database. I am not satisfied that the Department has acted legally regarding this scheme in the past, and the Data Protection Commissioner’s office has confirmed the lack of legal basis for the transfer of data during the course of the rollout of this scheme.

As I both object to the creation of the POD and have no confidence in the Department’s capacity to process this data in accordance with data protection law, please note that, per Paragraph 4.2 of Department of Education Circular No. 25/2015, I wish no transfer of data relating to my child to be made to the POD database.

Thank you for your assistance.

Yours faithfully
(Your name)

And if, like me, you’re the parent of a new Junior Infant who can’t avail of this opt-out system, well, I’ll link to a post I’ll write about that from here shortly about what you can do. Suffice to say, if defunding was threatened because POD data was the only way to fund, what is the justification for Junior Infants being defunded, now that there is an alternative?

Joan Burton signs the third law trying to make the POD scheme legal

Joan Burton, Ministerial Seal

The misbegotten Primary Online Database project is on its third piece of legislation designed to try to make it legal.

On the 21st July, The Minister for Social Protection Joan Burton signed a Ministerial Order seeking to try to provide a legislative basis for the transfer of children’s data from schools to the Department of Education.

You can take a look at SI 317 of 2015 here.

I’ll be writing more about this in a while. However, as Digital Rights Ireland’s Director TJ McIntyre pointed out on twitter, a Statutory Instrument can only be signed by a Minister in pursuit of the purpose allowed for in its originating legislation. (Otherwise, Ministers would be able to just pass laws without reference to the Oireachtas).

In this case, SI 317/2015 is a creature of Section 266 of the Social Welfare Consolidation Act 2005.

Statutory Instuments under Section 266 can only permit the transfer of data “where that Minister requires the information for the purpose of enabling him or her to provide education”.

This Statutory Instument doesn’t even claim to meet this “requirement” test. Instead, it weakly says that the Minister for Education should have the right to demand data such as a child’s mother’s maiden name, whether they’re boarding at a school, details of their special needs etc.

At the end of the Statutory Instrument, the justification for this huge data grab doesn’t even try to relate the SI to a requirement in order to provide education (the only legal basis for an SI signed under Section 266).

Instead it says
“The purpose of these Regulations is to extend the types of information that can be shared in order to further assist the Minister for Education and Skills to adequately monitor the progress of students through the education system.”

We’re rather a long way from “necessity”.

Dept of Education refuses FOI on POD as ‘not in the public interest’

Screw parents wishes we wanna

2nd March 2015 Mr Simon McGarr Re: FOI request 2015/45 I refer to the request which you made under the Freedom of Information Act 2014 for records held by this body: ‘I wish to make a request under the Freedom of Information Acts (as amended) for copies of any and all documents including but not limited to observations, letters, emails and/or submissions whether held in paper, electronic or ..

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