Buncrana Together has been contacted recently by a number of residents in the area about t Irish Water's latest ploy of forcing both private and council landlords to hand over information about tenants. Residents are worried that their details will be given to a third party like Irish Water. They question the legality of this in relation to Irish Data Protection laws and more importantly EU Data Protecion laws.
Lobbytag.eu, a project to track data protection legislation in the European Parliament, have stated " member states proposals are heavily skewed towards less, not more, privacy. And the three countries doing the most to ensure this in the case are Britain, Ireland and Germany.
The Irish Time of March 11, 2015 state that " EU partners still praise Ireland’s role in advancing the data protection brief during its 2013 presidency. But others remain uneasy, seeing Ireland has having a pro-business, pragmatic approach to privacy"
Private tenants in the area who are registed with PTRB have been told by landlords that Irish Water will bill them if their tenants do not register and landlords are being told to hand over tenants details to avoid this.
Irish Water state according to this article Independent.ie March 30 2015 "We've been through this with all local authorities, and with the Data Protection Commission in terms of the legal standing to ensure it is appropriate for us to ask for it." The move was allowed under Section 26 of the 2013 Water Services Act, which obliges a "relevant person" - which includes local authorities - to provide information to the company." In the same article the Office of Data Protection Commissioner has said that it considered Irish Water's proposals to obtain tenants names only from local authorities were "consistent with its statutory obligation to identify tenants in properties". Unfortunately, the Indepentent article seems to base a lot of it's information on Irish Water sources. It did not state the Data Protection Commissioner's view on private landlords.
Buncrana Together contacted the Data Commissioner's recently about this question and they replied " The Office of the Data Protection Commissioner would consider that Irish Water proposals to obtain tenant names only from local authorities and private landlords for the premises where no customer has registered are consistent with its statutory obligation to identify tenants in properties. The legislation that covers this is the Water Services Acts." They also said " Any further queries in relation to those Acts should be addressed to Irish Water or the Department of the Environment" Why should the Data Protection Commissioner advise us to address queries about legislation to Irish Water?
Good sources of information for landlords and tenants are the Private Residential Tenancies Board and FairSociety. The Private Residential Tenancies Board website states "Owners are legally presumed under the Water Services (No.2) Act 2013 to be the customer, unless proven otherwise. Such proof can be provided by (a) a tenant registering as customer at the premises or (b) the landlord providing the name of the tenant and date of commencement of tenancy."
Both the Irish Water Services Act of 2007 (brought in by FF) and the Irish Water Services Act 2013 ( brought in by FG/Lab) are extremely draconian laws. Laws that are or should be well known to all TDs and local councillors in the country. The acts do cite numerous clauses and penalties in relation to supplying information about property to the water authority. However, no matter how encompassing or harsh these acts are there still is a doubt or legal question whether they will hold against a persons rights to privacy as stated in Irish and EU data protection legislation .
Fairsociety in their web www.fairsociety.ie say "Under current legislation landlords are not obliged to divulge the names and addresses of tenants to Irish Water Ltd and even if Minister Alan Kelly introduces legislation to change that there will be huge legal implications regarding privacy laws both here and in the EU so no landlord should rush to hand over tenant details until such legislation is tested in the courts".
More Clarity Needed
In order to get more clarity Buncrana Together has emailed PRTB asking for clarity on the legal question of landlords passing on tenant's information to a third party. We have also written to europe.eu. It probably will take weeks to get answers back but when we do we will publish them.
It seems there are mixed messages which has left everyone confused. On the one hand we have the Data Protection Office saying that under the law it's ok 'only for local authorities' to pass over information to a third party while Irish Water would have you believe they have a legal right under the Water Services Act to force both council and private landlord to do so. Then you have Fairsociety saying in no uncertain terms " It is unlawful for a landlord to divulge private information about tenants to anyone (except where the law provides, like with a warrant) without the tenant’s consent. This includes the tenant’s name and address". So it seems to be a question of whether the Water Services Acts supercede prior Irish legislation such as Data Protection Acts 1988 and 2003 and whether they are in contention with
EU Data Protection Directive 95/46/EC. This is a lengthy process but one that is worthwhile.
Interim Advice from Buncrana Together
Read the above PRTB and Fairsociety's web pages. There is some very good reading for both tenants and landlords. Buncrana Against Irish Water would advise anyone objecting to water charges not to have any contact with Irish Water. If you are sent out an application pack or bill do not open it, return it to sender with a label you can get from our site at www.buncranatogether.com in 'Essential Downloads'. Do not write on the envelope (see the article on our site. Boycott The Bills).
There are a lot of legal issues with regard private data and it will come out in the wash but there is no need to get into arguments with landlords over the issue. If Irish Water phone you do not interact with them other than saying that you are too busy. Don't panic, in the end of the day if Irish Water has your name and address there's not much they can do, so far anyway, if you have no contract with them. You have a right to refuse a contract and you have a right to not pay. See the leaflet on our site 'Boycott the Water Bills'.