Data Protection Act 2018

Conduct of investigation under section 137

138. (1) An authorised officer who has been directed under section 137 (2) to carry out an investigation may, for the purposes of the investigation—

(a) require a person, being a controller or processor, or an employee or agent of such controller or processor, who, in the authorised officer’s opinion—

(i) possesses information that is relevant to the investigation, or

(ii) has any record or document within the person’s possession or control or within the person’s procurement that are relevant to the investigation,

to provide that record or document, as the case may be, to the authorised officer, and

(b) where the authorised officer thinks fit, require that person to attend before him or her for the purpose of so providing that information, record or document, as the case may be,

and the person shall comply with the requirement.

(2) A requirement under subsection (1) shall specify—

(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and

(b) as the authorised officer concerned thinks fit—

(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the record or document concerned, or

(ii) the place to which the person shall send the information, record or document concerned.

(3) A person required to attend before an authorised officer under subsection (2)

(a) is also required to answer fully and truthfully any question put by the authorised officer, and

(b) if so required by the authorised officer, shall answer any such question under oath.

(4) Where it appears to an authorised officer that a person has failed or is failing to comply or fully comply with a requirement under subsection (2) or (3), the authorised officer may, on notice to the person and with the consent of the Commission, apply in a summary manner to the Circuit Court for an order under subsection (5).

(5) The Circuit Court, on hearing an application under subsection (4), where satisfied that the person concerned has failed or is failing to comply or fully comply with the requirement concerned, may—

(a) make an order requiring the person, within such period as the Court may specify, to comply or fully comply, as the case may be, with the requirement, or

(b) substitute a different requirement for the requirement concerned.

(6) The administration of an oath referred to in subsection (3)(b) by an authorised officer is hereby authorised.

(7) A person the subject of a requirement under subsection (1) or (3) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.

(8) Any statement or admission made by a person pursuant to a requirement under subsection (1) or (3) shall not be admissible in evidence in proceedings for an offence (other than an offence under subsection (12)) brought against the person, and this shall be explained to the person in ordinary language by the authorised officer concerned.

(9) Nothing in this section shall be taken to compel the production by any person of statements, records or other documents or other information which would be exempt from production in proceedings in a court on the ground of legal professional privilege.

(10) For the purposes of an investigation, an authorised officer may, if he or she thinks it proper to do so, of his or her own volition conduct an oral hearing.

(11) Schedule 3 shall have effect for the purposes of an oral hearing referred to in subsection (10).

(12) Subject to subsection (9), a person who—

(a) withholds, destroys, conceals or refuses to provide any information or statements, records or other documents required for the purposes of an investigation,

(b) fails or refuses to comply with any requirement of an authorised officer under this section,

(c) in purported compliance with a requirement under this section, gives to an authorised officer information, documents or records which the person knows to be false or misleading in a material respect, or

(d) otherwise obstructs or hinders an authorised officer in the performance of functions under this Act,

shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or both.

(13) In this section, a reference to a document or record includes a reference to copies of such document or record.

(14) The powers conferred under this section on an authorised officer to whom subsection (1) applies are in addition to the powers conferred on such an authorised officer under Chapter 4.