Article 86 GDPR: Difference between revisions
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==== Personal Data May Be Disclosed ==== | ==== Personal Data May Be Disclosed ==== | ||
Article 85 GDPR states that official documents "''may be disclosed''" for the sake of transparency, | Article 85 GDPR states that official documents "''may be disclosed''" for the sake of transparency, even if the GDPR remains applicable in case the documents in question contain personal data. By stressing that official documents may be disclosed even when they contain personal data, Article 86 GDPR therefore seems to indicate that EU data protection law should not systematically prevent such disclosure. | ||
The provision further points out that a potential conflict may arise between transparency and data protection, and stress the need to reconcile those two conflicting rights, without however providing any indications as how to do it. There is, for example, no reference to the possibility to exempt controllers or processors from complying with certain obligations under the GDPR in order to facilitate access to documents. | The provision further points out that a potential conflict may arise between transparency and data protection, and stress the need to reconcile those two conflicting rights, without however providing any indications as how to do it. There is, for example, no reference to the possibility to exempt controllers or processors from complying with certain obligations under the GDPR in order to facilitate access to documents. [[Article 85 GDPR]] for example assigns to 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. By contrast, Article 86 GDPR does not provide any specific instruction on how to ensure compliance with the GDPR while ensuring sufficient transparency. The interest of reconciling data protection and transparency is simply 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''”. In consequence, some argue that “''[w]hen examining Article 86 GDPR one can wonder what normative value it actually has''”.<ref name=":0">See, ''Kranenborg'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 86 GDPR, p. 1216 (Oxford University Press 2020).</ref> | ||
==== The GDPR Remains Applicable ==== | |||
Having considered the above, 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)<ref>On this point, careful literature makes it clear 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).</ref>, and with the possibility for DPAs to scrutinize such processing. This interpretation is also confirmed by the case ''Bavarian Lager'', where the CJEU had already ruled that EU institutions have to apply EU data protection law in the context of access to official documents containing personal data.<ref>CJEU, Case C‑28/08 P ''European Commission v The Bavarian Lager Co. Ltd.'', para. 59.</ref> | |||
In many Member States, the right of the public to transparency in the administration has often been detailed by provisions of national law requiring authorities to actively publish official documents, or to communicate a copy of them upon request. When those documents contain personal data however, the GDPR remains applicable, and the concerned authorities must therefore consider on which legal basis under [[Article 6 GDPR|Article 6,]] [[Article 9 GDPR|Article 9]] or [[Article 10 GDPR]] such a processing of personal data may take place. | |||
''A fortiori'', when the documents do not contain any sensitive personal data, such disclosure could be lawful on the basis of [[Article 6 GDPR|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 GDPR|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 then 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 therefore further require the concerned authority to balance the interest of the requesting party to have access to the documents with the legitimate interest and right to privacy of the data subjects whose personal data appear in such documents. Such 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. | |||
The indications offered by the case-law, although not generous, at least confirm this conclusion. Over the years, the European courts have developed different criteria to appreciate the lawfulness of disclosing documents, or on the contrary to refuse such a disclosure, on grounds pertaining to the right to privacy or data protection. | The indications offered by the case-law, although not generous, at least confirm this conclusion. Over the years, the European courts have developed different criteria to appreciate the lawfulness of disclosing official documents, or on the contrary to refuse such a disclosure, on grounds pertaining to the right to privacy or data protection. | ||
For instance, in the case ''Magyar Helsinki Bizottság v. Hungary'', the ECtHR 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.<ref>ECtHR, Magyar Helsinki Bizottsdg, 18030/11, 8 November 2016, margin number 194 (available [https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-167828%22]} here]).</ref> The ECtHR considered such 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''". | For instance, in the case ''Magyar Helsinki Bizottság v. Hungary'', the ECtHR 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.<ref>ECtHR, Magyar Helsinki Bizottsdg, 18030/11, 8 November 2016, margin number 194 (available [https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-167828%22]} here]).</ref> The ECtHR considered such 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''". | ||
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A somewhat similar approach was adopted by the CJEU in a case where a Dutch journalist had 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, 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''”.<ref>CJEU, Dennekamp v. European Parliament, T-115/13, 15 July 2015, margin number 124 (available [https://curia.europa.eu/juris/document/document.jsf;jsessionid=2FA0EC9AAD183756D99C4235B1E6A3C1?text=&docid=165829&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5449531 here]).</ref> | A somewhat similar approach was adopted by the CJEU in a case where a Dutch journalist had 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, 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''”.<ref>CJEU, Dennekamp v. European Parliament, T-115/13, 15 July 2015, margin number 124 (available [https://curia.europa.eu/juris/document/document.jsf;jsessionid=2FA0EC9AAD183756D99C4235B1E6A3C1?text=&docid=165829&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5449531 here]).</ref> | ||
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 two criteria to assess whether disclosure of data is justified: “''the distinction between private and professional matters and the 'public nature' of the data''”.<ref name=":0" /> | 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''”.<ref name=":0" /> | ||
== Decisions == | == Decisions == | ||
Revision as of 12:39, 29 November 2021
Legal Text
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
Commentary
Transparency is essential to ensure the accountability of EU and national public institutions. Access to official documents is therefore recognized 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 State. This right, however, is not absolute. 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 85 GDPR states that official documents "may be disclosed" for the sake of transparency, even if the GDPR remains applicable in case the documents in question contain personal data. By stressing that official documents may be disclosed even when they contain personal data, Article 86 GDPR therefore seems to indicate that EU data protection law should not systematically prevent such disclosure.
The provision further points out that a potential conflict may arise between transparency and data protection, and stress the need to reconcile those two conflicting rights, without however providing any indications as how to do it. There is, for example, no reference to the possibility to exempt controllers or processors from complying with certain obligations under the GDPR in order to facilitate access to documents. Article 85 GDPR for example assigns to 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. By contrast, Article 86 GDPR does not provide any specific instruction on how to ensure compliance with the GDPR while ensuring sufficient transparency. The interest of reconciling data protection and transparency is simply 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”. In consequence, some argue that “[w]hen examining Article 86 GDPR one can wonder what normative value it actually has”.[1]
The GDPR Remains Applicable
Having considered the above, 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)[2], and with the possibility for DPAs to scrutinize such processing. This interpretation is also confirmed by the case Bavarian Lager, where the CJEU had already ruled that EU institutions have to apply EU data protection law in the context of access to official documents containing personal data.[3]
In many Member States, the right of the public to transparency in the administration has often been detailed by provisions of national law requiring authorities to actively publish official documents, or to communicate a copy of them upon request. When those documents contain personal data however, the GDPR remains applicable, and the concerned authorities must therefore consider on which legal basis under Article 6, Article 9 or Article 10 GDPR such a processing of personal data may take place.
A fortiori, when the documents do not contain any sensitive personal data, such disclosure 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 then 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 therefore further require the concerned authority to balance the interest of the requesting party to have access to the documents with the legitimate interest and right to privacy of the data subjects whose personal data appear in such documents. Such 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.
The indications offered by the case-law, although not generous, at least confirm this conclusion. Over the years, the European courts have developed different criteria to appreciate the lawfulness of disclosing official documents, or on the contrary to refuse such a disclosure, on grounds pertaining to the right to privacy or data protection.
For instance, in the case Magyar Helsinki Bizottság v. Hungary, the ECtHR 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.[4] The ECtHR considered such 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 had 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, 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”.[5]
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”.[1]
Decisions
→ You can find all related decisions in Category:Article 86 GDPR
References
- ↑ 1.0 1.1 See, Kranenborg, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 86 GDPR, p. 1216 (Oxford University Press 2020).
- ↑ On this point, careful literature makes it clear 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).
- ↑ CJEU, Case C‑28/08 P European Commission v The Bavarian Lager Co. Ltd., para. 59.
- ↑ ECtHR, Magyar Helsinki Bizottsdg, 18030/11, 8 November 2016, margin number 194 (available here).
- ↑ CJEU, Dennekamp v. European Parliament, T-115/13, 15 July 2015, margin number 124 (available here).
