Court dismisses appeal against DPC, ruling verbal conflict disclosure lacks GDPR material scope.

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF CITY OF DUBLIN

Record No. 2021/04468

IN THE MATTER OF AN APPEAL UNDER SECTION 150(5) OF

THE DATA PROTECTION ACT 2018

Between:

AIMEE SCOTT

APPELLANT

-and-

DATA PROTECTION COMMISSIONER (NO. 2)

RESPONDENT

Judgment of His Honour Judge John O’Connor delivered on the 17th day of November, 2022

1. Introduction:

1.1 The Appellant, Aimee Scott (Ms. Scott), appeals a decision of the Respondent (the Commissioner) dated the 2 September 2021. The complaint, which formed the basis of the

decision, concerned the disclosure of information by a Barrister to a law firm, for the purpose of a conflict-of-interest test. The disclosure is said to have taken place in advance of the end of June 2018. Therefore, the Data Protection Commissioner (DPC) determined that the General Data Protection Regulation (GDPR) applies to the complaint.

2. Background to the Complaint:

2.1 The Barrister in question represented the Appellant in an employment dispute. Some two years later, the Appellant appeared before the Workplace Relations Commission in relation to an unrelated employment dispute. The Barrister was instructed by a solicitor firm to act against the Appellant. Prior to accepting instructions from the law firm, the Barrister disclosed that she had acted for the Appellant in an unrelated employment matter two years previously. The law firm instructed the Barrister. At the hearing at the Workplace Relations Commission, the Appellant objected to the Barrister’s presence as she believed the Barrister was in possession of information, obtained from previous proceedings, which could be used to the Appellant’s disadvantage in these proceedings.

2.2 The Appellant subsequently wrote to the solicitor firm who instructed the Barrister, asking them to outline what steps they had taken to ensure they were fulfilling their legal obligations in assessing any conflicts of interest. The firm responded by way of letter, outlining the following: “[The Barrister] disclosed that she had acted for you in an employment law matter two years previously in respect of a different and unrelated employer. She stated she no longer holds papers in this previous matter and had returned them to her instructing solicitor.”

2.3 The Appellant lodged a complaint with the DPC alleging that the Barrister disclosed to the law firm that she previously acted for the Appellant in litigation, the subject matter of same and the time period, and that this amounted to a breach of the GDPR.

3. Summary of the Complaint sent by the Appellant to the DPC:

3.1 The Appellant’s complaint states that a Barrister disclosed personal information to a solicitor’s firm. The Appellant states this resulted in disclosing private and confidential information about her to a third party without permission, gained through a position of privilege. The Appellant states this disclosure was a breach of her data privacy and general data protection rights. Specifically, she states the Barrister disclosed that she acted for the Appellant in a previous, but unrelated, employment matter two years previously.

3.2 The solicitor’s firm replied that this disclosure was completed in respect of a conflictof-interest search and that the Barrister stated that she no longer held papers in this previous matter and had returned them to her instructing solicitors [different firm]. The Barrister also stated that she had not acted for the Appellant since then.

4. Role of the Respondent (the DPC):

4.1 The DPC examines complaints in accordance with Article 57 of the GDPR, which mandates the DPC to handle complaints “to the extent appropriate” depending on the subject matter of the complaint. Under Section 109(1) of the Act, “the Commission shall examine the complaint and shall, in accordance with this section, take such action in respect of it as the Commission, having regard to the nature and circumstances, considers appropriate”.

5. The DPC decision and its analysis of the complaint:

5.1 In its decision, dated the 2 September 2021, the DPC determined the issues to be as follows:

(a) Whether the information disclosed by the Barrister to the law firm constitutes personal data within the meaning of Article 4(1) of the GDPR?

(b) Whether the disclosure constitutes processing of such data within the meaning of Article 4(2) of the GDPR so as to bring it within the material scope of the GDPR as defined in Article 2(1)?

(c) Whether the Barrister had a lawful basis to process the Appellant’s personal data in the form of a legitimate interest?

5.2 In relation to the first issue (a), the DPC held that the information disclosed by the Barrister to the law firm constituted personal data within the meaning of Article 4(1) of the GDPR. Personal data is defined under Article 4(1) as “any information relating to an identified or identifiable natural person.” The DPC applied the decision of the Court of Justice of the European Union (CJEU) in the case of C-582/14 Patrick Breyer v Bundesrepublik Deutschland, where the CJEU held the term personal data should be interpreted broadly. The DPC held that the Barrister, in informing the law firm that she previously acted as counsel on the Appellant’s behalf, disclosed information relating to the Appellant as an identified or identifiable person, and thus a disclosure of personal data took place.

5.3 In relation to the second issue, whether the disclosure came within the material scope of the GDPR as defined in Article 2(1), the DPC held that it did not. Article 2 of the GDPR, headed “Material Scope”, provides in paragraph 1: “This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.”

5.4 The DPC held that the personal data must be recorded, in either electronic or manual form, to come within the scope of GDPR. The DPC found that the disclosure took place verbally in circumstances where the Barrister no longer held papers in relation to the matter, and thus the information disclosed did not form part of a filing system. The DPC relied on the case of David Scott v LGBT Foundation Ltd [2020] EWHC 483, where the High Court of England and Wales held that “a verbal disclosure does not constitute the processing of personal data” in circumstances where the evidence did not show any documents or written records were shared with a third party and the communications were entirely verbal. The Court noted that the outcome may seem unfair “but that [verbal disclosures] is not what the [Data Protection Act] is concerned with: it is a very specific scheme based around records and processing. There are other areas of law (in particular, the law of confidentiality) which are the appropriate vehicle for making such complaints if they are well-founded”. The DPC held that the disclosure, which formed the subject matter of the complaint, did not fall within the scope of the GDPR.

5.5 Notwithstanding this finding, the DPC considered the views of the parties as to a “legitimate interests” defence. The Barrister relied on Article 6(1) of the GDPR as a legal basis for disclosure. Article 6(1) states that processing of personal data is lawful where the processing is “necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data …”

5.6 The Barrister submitted to the DPC that she was contacted by a solicitor’s firm who sought to instruct her to act as counsel for a third-party client. In line with her professional obligations, she submitted to the DPC that she had acted for the complainant in an employment law related matter two years previously in respect of a different and unrelated employer. She specifically relied on paragraph 3.10 of the Code of Practice for Barristers, stating that she had a legitimate interest (Article 6(1)(f) of the GDPR) in disclosing information to MHC “to allow her potential instructing solicitors to consider the issue of whether a conflict of interest arose or would arise and take instructions from its clients regarding whether our client [the Barrister] would be instructed in the matter, in light of the disclosure.” The Barrister argued Section 162 of the Data Protection 2018 Act [“the 2018 Act”] and the rights and obligations provided for under Articles 12 to 22 and Article 34 of the GDPR do not apply in so far as the personal data was processed for the purpose of

(i) seeking, receiving or giving legal advice, and

(ii) the personal data is such that a claim of privilege could be made including personal data consisting of communications between a client and his or her legal advisers and between those advisers.

5.7 The Barrister submitted that Section 158 of the Act states that the rights and obligations provided for under Article 12 to 22 do not apply in so far as the restrictions are necessary and proportionate to safeguard judicial independence and court proceedings. Both the Appellant and Respondent acknowledge that an exchange of communication or disclosure of information took police between the Barrister and the solicitor firm.

5.8 The DPC applied the test for a legitimate interest legal basis as set out in the decision of the CJEU in the Rigas Case (C13/16 Vaslts policijas Rigas regiona parvaldes Kartibas policijas parvalde v Rigas pasvald ibas SIA Rigas satiksme) as follows:

1. Identifying a legitimate interest which they or a third party pursue;

2. Demonstrating that the intended processing of the data subject’s personal data is necessary to achieve the legitimate interest; and

3. Balancing the legitimate interest against the data subject’s interests, rights and freedoms.

5.9 In satisfying the first limb of the test, the DPC held that a clear legitimate interest arises in this case. The Barrister is a sole trader with a legitimate interest to work and at the same time is subject to professional sanction for failing to uphold the obligations placed upon her by the Code of Conduct for the Bar of Ireland, specifically paragraph 3.10, which states: “Having regard to the anticipated length and complexity of a case and having regard to their other professional commitments and the provisions of this Code, Barristers are bound to accept instructions in any case in the field in which they profess to practice (having regard to their experience and seniority) subject to the Payment of a proper professional fee. A Barrister may be justified in refusing to accept instructions where a conflict of interest arises or is likely to arise or where they possess relevant or confidential information or where there are other special circumstances.”

5.10 Separately, the DPC held that the law firm has a legitimate interest in instructing the Barrister to act as counsel on their behalf.

5.11 In relation to the second limb of the test, the DPC held that the disclosure of the information was necessary to achieve the legitimate interests of the data controller (the Barrister) and the third party (the law firm). The DPC held that the subject matter of the complaint was an oral communication of a minimal level of data necessary, satisfying the proportionality element of the test.

5.12 Finally, the DPC held that in balancing the legitimate interests of the Barrister and/or the third party against the Appellant’s interests, rights and freedoms, the balance swung in favour of the legitimate interest as the disclosure did not pose a risk to the Appellant’s fundamental rights and freedoms in respect of her personal data and was necessary having regard to the obligations placed on the Barrister.

5.13 Therefore, the DPC stated that it was satisfied to hold that a lawful basis existed, in accordance with Article 6(1)(f) of the GDPR, for the disclosure of the Appellant’s personal data in the manner outlined in the complaint.

6. Outcome of the Appellant’s complaint by the Respondent [DPC]:

6.1 In summing up its analysis, the DPC held:

(a) That on the evidence available to the DPC the disclosure of Appellant’s personal data by the Barrister to the solicitor was a verbal disclosure and did not come within the scope of the GDPR.

(b) Notwithstanding this finding, in so far as it deemed arguments were advanced in relation to the lawfulness of the processing of personal data and examined by the DPC, the Commissioner was satisfied that the Barrister had a lawful basis to process the Appellant’s personal data pursuant to Article 6(1)(f) of the GDPR.

(c) The provisions of section 158 and section 162 as asserted by the Barrister do not apply to this complaint in circumstances where none of the rights sets out in Articles

12 to 22 or the obligation under Article 34 are relevant.

7. Appellant’s appeal to the Court

7.1 In oral submissions, the Appellant requested the court to determine the following questions:

(a) Is the Respondent correct in finding that the disclosure of personal data by means of verbal transmission does not come within the scope of the GDPR?

(b) If the disclosure of personal data did not come within the scope of GDPR, was the Respondent correct in issuing a decision on Article 6(1)(f) of the GDPR?

(c) If the disclosure of personal data did come within the scope of GDPR, did the barrister have a lawful basis to process the Appellant’s data pursuant to Article 6(1)(f) of the GDPR?

(d) Was the Respondent correct in dismissing the Appellant’s complaint? Ground (a): Is the Respondent correct in finding that the disclosure of personal data by means of verbal transmission does not come within the scope of the GDPR?

7.2 The Appellant submits that within the decision, the Respondent holds contradictory positions regarding the disclosure of written records. The Appellant submits that the Respondent correctly determines a disclosure of material that had been recorded as part of a structured filing system took place, at paragraph 5.2 and 6.1(a) of its Decision. However, at paragraph 5.4 of its Decision, the Appellant contends that the Respondent subsequently erred by adopting a contradictory position to their own findings in stating that “the evidence did not show any documents or written records were shared with a third party”. The Appellant accepts that once material is recorded in an accessible filing system it becomes data for the purposes of GDPR. The Appellant does not accept the finding of the DPC that the evidence did not show any documents or written records were shared with a third party. The Appellant submits that the oral disclosure by the Barrister to the firm of solicitors was merely a means of transmitting the written records that had been previously recorded and were part of a filing system. These written records contained personal data, as regarded by the GDPR. Thus the processing of this data was “making available written data” which formed and forms part of a filing system. The Appellant referred to a letter from a solicitor acting for the Barrister which stated, “our client retains copy data for seven years and one day in accordance with her data retention policy in case it is needed to defend against any complaint or legal claim brought against her”. In oral submissions, the Appellant submitted that a failure to recognise such verbal disclosure as coming within the scope of the Act would circumvent the objectives of the Act.

7.3 The Appellant submits that the Respondent misapplied the findings in the case of Scott v LGBT Foundation [2020] EWHC 483, alleging that the manner in which the case was interpreted was contrary to the principles propounded. The Appellant distinguishes the Scott

decision as the disclosure did not concern data but information which had not been recorded as part of a structured filing system. Ground (b): If the disclosure of data did not come within the scope of GDPR was the Respondent correct in issuing a decision on Article 6(1)(f) of the GDPR?

7.4 In oral submissions, the Appellant argued that by proceeding to assess the lawful basis for disclosure, the Respondent accepted that the disclosure fell within the material scope of GDPR. The Appellant submits that if the disclosure did not fall within the material scope of GDPR, the Respondent did not have jurisdiction to issue a legally binding decision in respect of whether the Barrister had a legitimate interest or not in disclosing the data. Ground (c): If the disclosure of personal data did come within the scope of GDPR, did the Barrister have a lawful basis to process the Appellant’s data pursuant to Article 6(1)(f) of the GDPR?

7.5 The Appellant does not accept that data disclosed was to enable the solicitor firm to assess whether a conflict of interest existed, in the context of the engagement of the Barrister acting for their client. The Appellant submits that the onus of proof, in establishing a legitimate interest, rests on the entity or individual asserting same, namely the Barrister. The Appellant submits the Barrister failed to establish this. The Appellant submits that the burden cannot be discharged in the present appeal due to the failure of the Barrister to join these proceedings. In written submissions, the Appellant relies on the necessity test as set out in the “Legal Basis for Processing Personal Data” guide by the Data Protection Commission (December 2019). Firstly, a legitimate interest must be identified. Secondly it must be necessary to disclose the information, and finally a balancing exercise must be conducted.

7.6 The Appellant submits that the transmission of data was excessive, unwarranted and breached her fundamental rights regarding the protection of her private life and data. The Appellant rejects that the communication was of a minimal level of data necessary. Ground (d): Was the Respondent correct in dismissing the Appellant’s complaint?

7.7 The Appellant submits that the Court should determine that the Respondent was incorrect in finding the verbal disclosure of data by the Barrister to the law firm did not come within the scope of GDPR and in finding that the Barrister did have a lawful basis to process the Appellant’s data pursuant to Article 6(1)(f) of the GDPR.

8. Respondent’s Legal Submissions:

8.1 Admission of New Evidence on Appeal: The Respondent submits that the court should generally confine itself to the materials that were before the DPC. The Respondent referred to the Supreme Court decision of Murphy v Minister for Defence [1991] 2 IR 162 at 164, where the Court set out three conditions which must be met for additional evidence to be admissible, namely: “1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence, must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

8.2 The Respondent submits that the email correspondence exhibited at AS4 to the Appellant’s affidavit sworn on 22 April 2022 was not before the DPC and therefore, did not meet the first criterion in Murphy since it post-dated the DPC’s decision. Accordingly, the Respondent submits that it is prima facie inadmissible on the appeal.

8.3 The Respondent further submits the decision of the Barristers’ Professional Conduct Appeals Board was before the DPC but in an excerpted and differently redacted format. The new version does not meet the third criterion in Murphy. The DPC was not required to seek unredacted or complete versions of documents which the Appellant had chosen to provide in redacted and excerpted form. The Respondent also submits that criterion two is not met in relation to this same piece of evidence. Provisions of the GDPR relevant to the Appeal:

8.4 The Respondent submits that the following Articles of the GDPR are relevant to the Appeal. Article 2 of the GDPR, titled “Material Scope”, states: “This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.” Article 4 of the GDPR defines the terms used throughout the regulation. Personal data is defined in Article 4 as: “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”. Processing is defined in Article 4 as: “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction”. A filing system means: “any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis”. Article 6(1)(f) of the GDPR provides that processing is lawful where the processing is “…necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protections of personal data.” Oral Disclosure:

8.5 The Respondent submits that it is common case that:

(a) the disclosure was a verbal communication;

(b) the disclosure comprised of the Appellant’s personal data as defined by Article 4(1)

of the GDPR; and

(c) In order for personal data to come within the scope of the GDPR, the personal data must be recorded, in either electronic or manual form.

8.6 The Respondent submits that as a result of the communication being in an oral format, the exact details of the communication were not available, other than as confirmed by the solicitor firm in its letter dated 17 April 2019.

8.7 The Respondent relied on the decision of David Scott v LGBT Foundation Ltd [2020] EWHC 483 (QB), where the High Court of England and Wales held, at paragraph 61, that a verbal disclosure does not constitute the processing of personal data and thus cannot give rise to a claim under the Data Protection Act.

8.8 Applying that Court’s interpretation of the GDPR to the facts in this case, the Respondent submits that the disclosure does not come within the scope of GDPR as the evidence does not show any documents or written records were shared with a third party and the disclosure was entirely verbal. In addition, the Respondent submits that the Barrister had stated, through her then legal representative, that she no longer held papers in relation to the previous matter, having returned them to her instructing solicitors

8.9 The Respondent accepts a set of papers held by a barrister may be sufficient to comprise a filing system within the wide definition of such a filing system in Tietosuojavaltuutettu (Case C-25/17). However, the Respondent states that the evidence before the DPC was that papers had been returned by the Barrister to her instructing solicitors. There was no evidence that the Barrister consulted those papers in preparation for or during the conversation with the solicitor firm where disclosure was made.

8.10 The Respondent therefore suggests that the information was not contained in the papers itself, but at most was a derivative of such information.

8.11 The Respondent also submits that the terms of the disclosure are relevant, containing in their view both very limited detail (which could easily have been recalled from memory and without reference to papers, namely whether the Barrister had acted for the Appellant, the approximate time when the Barrister so acted, and the general area of law) and new material which could not, in terms, have appeared on the face of the papers. Legitimate Interest:

8.12 Although holding that the disclosure did not come within the scope of the GDPR, the DPC also considered the arguments as to whether the Barrister had a lawful basis for the processing of the Appellant’s personal data under Article 6(1)(f) of the GDPR. In response to the Appellant’s arguments that the DPC lacked jurisdiction to adopt such an approach, the Respondent submits that it is common for decision makers, having reached a view on one issue, to consider the potential consequences in the event that a contrary view might have been reached.

8.13 The Respondent submits that a legitimate interest had been identified in respect of the Barrister, Solicitor and Solicitor’s client. The disclosure was necessary to achieve the relevant legitimate interest and the disclosure was proportionate and consistent with the principle of data minimisation, pursuant to Article 5(1)(c) of the GDPR.

9. The Court’s Decision

9.1 Legal Framework: Both parties accept that the Complaint falls to be determined by the GDPR and the Data Protection Act 2018. Section 150 of the 2018 Act provides an appeal mechanism against a legally binding decision of the Commission. The Court, upon hearing the appeal, shall

(a) Annul the decision concerned,

(b) Substitute its own determination for the decision, or

(c) Dismiss the appeal.

9.2 Standard of Review: This Court outlined the standard of review in Aimee Scott v the Data Protection Commissioner (No. 1) as follows: [Section 150 of the 2018 Act], provides for an appeal to the Circuit Court against any

decision of the Commissioner in relation to such a complaint. In Nowak v. Data Protection Commissioner [2016] 2 IR 585, (“Nowak”) the Supreme Court (O’Donnell J.) held that the test to be applied, on any appeal of this nature, is that promulgated by Keane CJ in Orange v. Director of Telecommunications Regulations [2000] 4 IR 159 at pages 184 to 185 (“The Orange Test”): “In short, the appeal provided for under this legislation was not intended to take the form of re-examination from the beginning of the merits of the decision appealed from culminating, if may be, in the substitution by the High Court of its adjudication for that of the first defendant. It is accepted that, at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the first defendant was being challenged by way of judicial review. In a case of this legislation at least, an applicant will succeed in having the decision appealed from set aside where it establishes to the High Court as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error, or a series of such errors. In arriving at a conclusion on that issue, the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the first defendant.” Therefore, an appeal under [Section 150 of the 2018 Act] is not a full re-hearing on the merits and is limited in nature. In applying the Orange Test, as outlined by O’Donnell J above, the following three principles are applicable to this case:

(i) First, the appeal is not intended to take the form of a re-examination from the beginning of the merits of the decision, culminating in the substitution by the Court of its adjudication for that of the statutory decision-maker.

(ii) The Court is not confined to the issues which could be raised solely by way of judicial review. However, an applicant must establish as a matter of probability that taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or series of such errors.

(iii) In its decision, the Court will necessarily have regard to the degree of expertise and specialized knowledge available to the Commissioner. In coming to its judgment, the Decision should be assessed by the court on the basis of the evidence that was before the Commissioner at the time of the Decision. [King & Others v Minister for Finance & Others [2010] IEHC 307; Governey v Financial Ombudsman & Anor [2013] IEHC 403; Millar v Financial Services Ombudsman [2015] IECA 126] In addition, the court should not consider complaints about process or merits in isolation but rather should consider the adjudicative process as a whole. [Millar v Financial Services Ombudsman [2015] IECA 126] The burden of proof is on the appellant which in this case is Ms Scott and the standard of proof is the balance of probabilities. [Millar v Financial Services Ombudsman [2015] IECA 126]

9.3 The Court adopts the test of appeal outlined in Aimee Scott v. Data Protection Commission (No. 1), as stated above.

9.4 However, the Court would also add the following:

1. The decision of the Data Commissioner is the starting point of the appeal.

2. Curial deference is more circumspect to issues on questions of law. The court has the right to explore the extent of the specialism attributable to that curial deference if it covers matters outside the normal role of the respondent, such as for example, legal issues concerning disclosures.

3. The Court also holds that a purely verbal communication, in the circumstances that present themselves, is not a communication for the purposes of the GDPR as it cannot reasonably be interpreted as falling within the definition of Material Scope as outlined in Article 2 of the GDPR.

4. A barrister’s notes, even if disposed of later, is sufficient to constitute a filing system for the purposes of GDPR.

5. The Respondent was correct to determine that the disclosure by the barrister to the firm of solicitors satisfied the legitimate interest test. Indeed, it is difficult to see how this could be done otherwise than occurred in this case.

9.5 In conclusion, essentially the substance of this case is about an allegation of conflict of professional interests which affected the Appellant. Even if a different tribunal held that the Barrister did have a conflict of interest, this does not automatically and retrospectively invalidate the legitimate interest test in the original disclosure. For data purposes, the Barrister had a legitimate reason to disclose the information that she was involved in a previous employment case. This arose due to the Barrister’s professional ethical commitments arising from her work. The fact that the Barrister, allegedly, in the course of the subsequent case created a situation that could have been interpreted as a conflict of interest does not invalidate the disclosure. That may give rise to a regulatory and legal concern for the Appellant against the Barrister. However, that is a matter for a different legal forum to assess the situation.

Nevertheless, it does not retrospectively create a GPDR issue when none existed at the time of the disclosure.

9.6 Accordingly, I will affirm the decision of the Respondent and dismiss the appeal.