
The Office of the Data Protection Commissioner (ODC) has put an interesting framework out to tender: "the provision of legal services to the Office of the Data Protection Commissioner".
Not an unusual thing, I am sure, for a state agency to seek legal advice on general operations. But check out this list of likely advice requirements:
a) Advice in regard to data protection enforcement issues which may arise in respect of data controllers;
b) Advice on the form of Statutory Notices to be issued in certain cases (e.g. Information Notices, Enforcement Notices);
c) Advice on legal options and representation in certain cases, including judicial review, appeals of Statutory Notices and prosecutions;
d) Advice on proposed and existing legislation affecting the Data Protection Acts;
e) Advice on data protection issues which arise in relation to the internet and the emerging e-commerce environment; and
f) Advice on contractual arrangements with consultants.
g) Advice on the form of summonses to be issued in respect of the Data Protection Commissioner’s prosecution functions.
h) Advice on the drafting of affidavits in certain cases such as appeal proceedings relating to Statutory Notices and judicial review proceedings.
This would entail, essentially, the wholesale outsourcing of the most important functions of the ODC and puts in the hands of legal firms the core knowledge and know-how relating to an increasingly-important regulatory area. It also suggests a shocking lack of existing knowledge at the ODC.
Should we not expect the ODC to have access to internal advice and know-how on data protection issues, prosecutions and legislative developments? Can we really accept the outsourcing of legislative proposals of this nature? And what is the purpose of the continued existence of the ODC if, in fact, most of its positions will be coming from the private sector anyway? Surely we could cut out the middleman, in that case.
Furthermore, didn't the McCarthy Report recommend the amalgamation of the ODC with other agencies, such as the Information Commissioner (as is the case in the UK)? Hardly a good time to be putting together a panel of legal advisers for the ODC, surely, and where is the funding coming from?

