Article 86 GDPR

← Article 86 - Processing and public access to official documents →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 86 - Processing and public access to official documents

Personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation.

Relevant Recitals

Recital 4: Balance Against Other Fundamental Rights

The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity.

Recital 154: Public Access to Official Documents

This Regulation allows the principle of public access to official documents to be taken into account when applying this Regulation. Public access to official documents may be considered to be in the public interest. Personal data in documents held by a public authority or a public body should be able to be publicly disclosed by that authority or body if the disclosure is provided for by Union or Member State law to which the public authority or public body is subject. Such laws should reconcile public access to official documents and the reuse of public sector information with the right to the protection of personal data and may therefore provide for the necessary reconciliation with the right to the protection of personal data pursuant to this Regulation. The reference to public authorities and bodies should in that context include all authorities or other bodies covered by Member State law on public access to documents. Directive 2003/98/EC of the European Parliament and of the Council leaves intact and in no way affects the level of protection of natural persons with regard to the processing of personal data under the provisions of Union and Member State law, and in particular does not alter the obligations and rights set out in this Regulation. In particular, that Directive should not apply to documents to which access is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been provided for by law as being incompatible with the law concerning the protection of natural persons with regard to the processing of personal data.

Commentary

Transparency is essential to ensure the accountability of EU and national public institutions. Access to official documents is therefore recognised as a fundamental right under Article 42 of the Charter of Fundamental Rights of the EU, as well as in the constitutions of many Member States. However, this right is not absolute. Under Article 86, it can be limited, inter alia, to protect the fundamental rights and freedoms of other individuals, including the right to privacy and data protection of individuals whose personal data would be contained in such documents.

Personal data may be disclosed

Article 86 GDPR states that official documents "may be disclosed" for the sake of transparency even if the GDPR remains applicable, which is the case when those documents contain personal data. By doing so, Article 86 GDPR seems to indicate that EU data protection law should not systematically prevent their disclosure.

The provision further points out that a potential conflict may arise between transparency and data protection, and stresses the need to reconcile those two conflicting rights, albeit without providing any indications as to how this should be accomplished. For example, it does not refer to the possibility of exempting controllers or processors from complying with certain obligations under the GDPR in order to facilitate access to documents as it happens, for example, in Article 85(1) GDPR, which notably assigns Member States the task of reconciling freedom of expression and information with data protection rules, and specifically lists which parts of the GDPR can be derogated from in that context in Article 85(2). By contrast, Article 86 GDPR does not provide any specific instructions on how to ensure compliance with the GDPR while ensuring sufficient transparency. This confusion is also reflected in the case law. In C-28/08 Bavarian Lager, the General Court held that transparency overrode data protection. However, on appeal, the CJEU ruled the other way and stated that the original decision to withhold the documents was correct. There is some suggestion that if the personal data is particularly sensitive, privacy should trump transparency. In C-439/19 B v Latvijas Republikas Saeima the CJEU held that ‘in light [of]… the sensitivity of data relating to penalty points imposed for road traffic offences and of the seriousness of the interference with fundamental rights … which is caused by the disclosure of such data, it must be held that those rights prevail’.

The interest of reconciling data protection and transparency is acknowledged, “but the provision does not allow for exemptions and derogations from the rules contained in the GDPR nor does it set any further conditions”. Thus, some argue, that “[w]hen examining Article 86 GDPR one can wonder what normative value it actually has”.

Official documents

The term ‘official documents’ is not defined in the GDPR. Whichever interpretation the term is given will affect the scope of Article 86. Two possible interpretations include 1) documents generated by an authority in its official capacity and 2) all documents held by an authority. Recital 154 seems to lean towards the second as it states ‘personal data in documents held by a public authority or a public body’. A decision about its scope will have to be determined by member states or eventually the CJEU.

Disclosed by the authority or body

Article 86 deals with disclosure by authorities and bodies covered by member state or union access laws. Since they are already covered by access regimes, a question arises as to why Article 86 as a provision exists. One idea is that it exists to prevent a situation where the GDPR is used by member states to create an obstacle against access laws. The acknowledgement of a need for ‘reconciliation’ and acknowledgement of the importance of access to information in Article 86, supports this interpretation and makes room for pro-transparency arguments at a national level.

The GDPR remains applicable

The task of balancing the right of access and right to privacy is left to each member state to decide in their national laws. This could result in fractured harmonisation as each member state has the competence to balance them differently.

However, it can be concluded that the GDPR remains fully applicable in the context of the exercise of the right to access to official documents, with the need to respect, inter alia, the principle of lawful and fair processing (Article 5 GDPR) or the obligation to have a valid legal basis (Article 6 GDPR),[On this point, some authors have argued that “the Union or Member State law referred to in Article 86 on which disclosure can be based is no different from a Union or Member State law referred to in Article 6 GDPR. Recital 154 also seems to go in this direction as it states that public access to official documents may be considered to be in “the public interest”. See, Kranenborg, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 86 GDPR, p. 1217 (Oxford University Press 2020).] and with the possibility for DPAs to scrutinise such processing. This interpretation was also confirmed by Bavarian Lager, where the CJEU ruled that EU institutions have to apply EU data protection law in the context of access to official documents containing personal data.

In many Member States, the right of the public to transparency in the administration has often been conferred by provisions of national law requiring authorities to actively publish official documents, or to communicate a copy of them upon request. However, the GDPR remains applicable when those documents contain personal data, and the concerned authorities must therefore consider on which legal basis under Articles 6, 9 or 10 GDPR such processing of personal data may take place.

. In fact, national DPA’s (see UK, Germany, Estonia, Hungary etc.) are often tasked with balancing these two rights (such as freedom of information) and data privacy. On the EU level, these enforcement powers are separated. The EU Ombudsman takes care of access while EDPS acts as an independent supervisor of privacy of the EU Institutions. Having said this, the two signed a Memorandum of Understanding on cooperation as early as 2006.

A fortiori, when the documents do not contain any sensitive personal data, such disclosures could be lawful on the basis of Article 6(1)(c) GDPR (i.e. processing is necessary for compliance with a legal obligation to which the controller is subject) or Article 6(1)(e) GDPR (i.e. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller). When the disclosure of official documents is based on the necessity to comply with a legal obligation, the conditions laid down in the underlying national law must be fully considered, including any exceptions or potential grounds for refusal. Often, one of these conditions is the respect of the right of privacy and data protection of individuals, which would require the concerned authority to balance the interest of the requesting party to access the documents with the legitimate interest and right to privacy of the data subjects whose personal data appear in such documents. This analysis must be made on a case-by-case basis, in light of all the relevant circumstances, including the nature of the document, its value for the public, and the consequences of its disclosure.

For instance, the ECtHR in Magyar Helsinki Bizottság v. Hungary examined the refusal of the Hungarian authorities to provide an NGO with information relating to the names and work of ex officio defence counsel on the ground that such information constituted personal data. The ECtHR considered this refusal contrary to the Convention, because (among others) the request for these names, "although they constituted personal data, related predominantly to the conduct of professional activities in the context of public proceedings", and that those activities "cannot be considered to be a private matter".

A somewhat similar approach was adopted by the CJEU in a case where a Dutch journalist filed an access request concerning the functioning of an additional pension scheme for MEPs. The Parliament had first rejected the request in order to protect the privacy of parliamentarians. The CJEU, however, then annulled this decision because disclosure would not prejudice the legitimate interests of the MEPs. In particular, the CJEU held that “in weighing up the interests engaged, the legitimate interests of the MEPs who are members of the additional pension scheme, which fall into the public sphere of those MEPs, must be subject to a lesser degree of protection than that which, following the logic of Regulation No 45/2001, would be enjoyed by the interests falling into their private sphere”.

In conclusion, as Kranenborg correctly states, the case law of the ECtHR as well as the case law of the CJEU show that there are at least two criteria to assess whether disclosure of data is justified: “the distinction between private and professional matters and the 'public nature' of the data”.

Decisions

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