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 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, while indirectly stressing that the disclosure of official documents containing personal data must be considered as a processing of personal data under the GDPR.

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. By contrast, Article 85 GDPR 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.

Article 86 GDPR, for its part, 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”.

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 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), 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 data protection law remains fully applicable in the context of a request to access an official document containing personal data.

In many Member States, the right to access to documents has often been detailed by provisions of national law that are putting the authority under the duty to actively publish official documents, or at least requiring them to communicate a copy of them upon request. Before disclosing any official document containing personal data, public authorities should however also carefully consider the applicable legal basis under the GDPR, and the conditions laid by the latter. A fortiori, 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 of 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). Yet, the conditions laid down by 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 therefore further require the public authority concerned to balance the interest of the requesting party to have access to the document with the legitimate interest and right to privacy of the data subjects.

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.

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. 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”.

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”. However, these criteria only serve only as general indications for both courts and lawmakers, leaving them the task to conduct an actual assessment on a case-by-case basis.

Decisions

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