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

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