AEPD (Spain) - PS/00587/2021
From GDPRhub
| AEPD - PS/00587/2021 | |
|---|---|
 | |
| Authority: | AEPD (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Article 5(1)(f) GDPR Article 24 GDPR Article 25 GDPR Article 32 GDPR §16 Ley 41/2002, de 14 de noviembre, sobre documentación clínica |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | |
| Published: | |
| Fine: | n/a |
| Parties: | Regional Health Minister of Madrid |
| National Case Number/Name: | PS/00587/2021 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Spanish |
| Original Source: | AEPD (in ES) |
| Initial Contributor: | Michelle Ayora |
The Spanish DPA reprimanded a controller for a confidential data breach involving a medical record. An employee accessed the medical record without authorisation or justification for it. The resolution contains the suggested measures to comply with security standards of protection for the special category of data.
English Summary
Facts
The data subject submitted a complaint before the Spanish DPA against the Regional Health Minister of Madrid, the controller, due to unlawful access to their medical record. The data subject spent half of a day at La Paz hospital’s emergencies room, however, the access was carried out by a nurse who was not providing health care to the data subject and who was working in another department in the same hospital (surgery), thus, had access to the system with their personal key.
The incident was investigated internally at the hospital and the conclusions lead to a recognition of a confidential data breach. For that incident, the nurse was reprimanded.
Once the Spanish DPA decided to start an investigation for a violation of the GDPR, the controller claimed that the hospital had appropriate organisational and technical measures according to the National Security Scheme, for instance, all the user's activities are registered and that information allows the identification of the staff member who accesses the medical records, as well as the assessment of unlawful activities. The controller also claimed the establishment of audits in cases of data breaches, the system’s segregation by profiles which restricts the access of different users to what is necessary (data minimization), the signature of confidentiality agreements by the employees and an informative banner that appears every time any user try to access warning about illegitimate access. In the same line, the data subject stated that the hospital provides training on security and data protection, that they investigated the incident and reprimanded the nurse.
Finally, the controller claimed that proposed limited access to the medical record only by the health professionals who are providing health care would be an obstacle to the normal functioning of the hospital and that the national regulation regarding patients' autonomy and the medical record states that medical records should be accessible by all the different health professionals at the hospital to guarantee the appropriate health care to each patient.
Holding
The DPA stated that most of the security measures described are inefficient for the prevention of unlawful access: The activities register, and the audits are measures to react after the incident; the banner only has informational purposes and does not prohibit access to illegitimate users; finally, the confidentiality agreement does not, in itself, prevents those access. Regarding the segmentation of profiles, the DPA stated that it could be taken as the only valid and effective measure; however, they have not implemented a basic element which is allowing access to only patients to whom they are providing health care (and not general access between different departments). The DPA challenged the reference to the national regulation on patient’s autonomy and rights and obligations regarding informed consent and medical record (Ley 41/2002, de 14 de noviembre, básica reguladora de la autonomía del paciente y de derechos y obligaciones en materia de información y documentación clínica) and interpreted that a medical record is a tool whose main purpose is to guarantee the appropriate health care to the patient and to which, only health personnel providing a diagnosis or a treatment are entitled to access (Article 16). Furthermore, medical care sites must implement measures taking into consideration the patients assigned to each professional, the health department where they work, and their working shifts (since the same nurse can be working in one department for a determined week and then move to another one), to avoid the access to medical records by professionals who are not assigned to those patients. The DPA suggested an IT app that controls access to medical records by determining if the request is legitimate considering the user’s specialization, shift or work tasks at that moment. This also should be complemented with the respective audits of the system.
In this case, the access was performed by a nurse working in the surgery room, whereas the patient was being treated in the emergency room. This denotes the lack of appropriate security measures. Furthermore, the same controller recognised the unlawful conduct by sanctioning the nurse.
For this, the Spanish DPA fined the controller for a violation of Article 5(1)(f) and 32 GDPR.
About Article 5, the DPA stated the content of Recital 39 and highlighted the fact that medical records belong to the special category of data whose processing is prohibited unless one of the exceptions listed in Article 9(2) of the GDPR applies. This condition increases the level of protection and the obligation of security by the controller.
Concerning Article 32, both paragraphs (1)(b) and (2) were pointed out as well as Articles 24, 25 and recital 75.
Finally, due to the provisions of national legislation, the controller was reprimanded since it was a public entity. Notwithstanding, the DPA exercised the power of Article 58(2)(d) GDPR and imposed a corrective measure and order the controller to establish appropriate measures to align the security level to Articles 5(1)(f) and 32 GDPR following the proposed measures in this resolution.
Comment
The DPA based their decision on a precedent (PS-00250/2021) in which the Health System of Extremadura was reprimanded for unlawful access to a medical record by a nurse without authorisation or justification for it.
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English Machine Translation of the Decision
The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.
1/26
File No.: PS/00587/2021
RESOLUTION OF SANCTIONING PROCEDURE
Of the procedure instructed by the Spanish Agency for Data Protection and based on
to the following
BACKGROUND
FIRST: On November 22, 2020, A.A.A. (hereinafter, the part
claimant) filed a claim with the Spanish Data Protection Agency.
The claim is directed against the MINISTRY OF COMMUNITY HEALTH
DE MADRID, with NIF S7800001E, (hereinafter, the claimed party).
The claimant states that, on May 16, 2020, it filed a
complaint to the Directorate of the University Hospital of La Paz where he worked, for
the alleged improper access to his medical history by a colleague
work B.B.B. and that he has only received a response that his transfer was made
claim to the Medical Department of Hospital La Paz for investigation.
It indicates that on May 13, 2020, at around 8 a.m., the aforementioned
nurse, from the operating room service in the general building of the University Hospital la
Paz de Madrid, taking advantage of her status as a nurse and using her passwords
personal access, entered, without any care relationship, in his
clinical history, located in the "HCIS computer system" database.
He states that on the same day, May 13, 2020, he reported the facts described to the
nursing supervision of the operating room service where the nurse worked, as well as
as well as the Nursing Department of Hospital la Paz.
Provides a letter dated 05/20/2020, where the head of the Information Service of the
Hospital Universitario La Paz notifies the claimant of the transfer to the Directorate
Medical center of the notification about "improper access to your medical record" and the
claim filed with Salud Madrid.
SECOND: In accordance with article 65.4 of Organic Law 3/2018, of 5
December, Protection of Personal Data and Guarantee of Digital Rights
(hereinafter LOPDGDD), said claim was transferred to the claimed party,
to proceed with its analysis and inform this Agency within a month,
of the actions carried out to adapt to the requirements established in the
data protection regulations.
This Agency does not contain a response to the transfer of the claim.
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THIRD: On April 26, 2021, in accordance with article 65 of the
LOPDGDD, the Director of the Spanish Data Protection Agency agreed
admit for processing the claim presented by the claimant.
FOURTH: The General Subdirectorate of Data Inspection proceeded to carry out
of previous investigative actions to clarify the facts in
matter, by virtue of the investigative powers granted to the authorities of
control in article 57.1 of Regulation (EU) 2016/679 (General Regulation of
Data Protection, hereinafter GDPR), and in accordance with the provisions of the
Title VII, Chapter I, Second Section, of the LOPDGDD, being aware of the
following extremes of the claimed party:
DEPARTMENT OF HEALTH OF THE COMMUNITY OF MADRID, with NIF S7800001E,
with address at C/ MELCHOR FERNÁNDEZ ALMAGRO, No. 1 - 28029 MADRID
(MADRID).
On 05/24/2021, information is required from the party claimed within the framework of the
present investigation file. Not receiving an answer, the
request, receiving a response with the following results:
About access.
A copy of the record of access to the Hospital information system has been requested
of La Paz on 05/13/2020 where the accesses made by the nurse are recorded
cited by the claimant. It is requested to provide the date and time of the accesses, the details of the
type of data accessed, as well as supporting documentation of the justification
tion existing for said accesses.
In view of this, the claimed party only indicates that the Hospital Universitario La Paz has
conducted an investigation into the facts and has concluded that there have been accesses
by the nurse cited by the claimant, in the time slot in which
She goes to the ER at 3:46 a.m. until you are discharged the same day at
10:12 a.m.
About investigations of accesses.
A copy of the appropriate investigations mentioned in the report has been requested.
document from the Patient Care Service, as well as the final response issued
to the claimant, attaching to the request of this Agency a copy of the document
provided by the claimant where the Head of the Information Service of the Hospital
Universitario La Paz communicates the transfer to the Medical Directorate of the center of the
notification about "improper access to your medical record" so that "proceed to
carry out the appropriate investigations”.
In this regard, the claimed party indicates that the Hospital de la Paz has carried out
the appropriate investigations to clarify the facts described by the complainant.
They do not provide a copy of the required investigations. Provide a copy of a letter
dated 12/18/2020, indicating that it is the final response sent to the claimant, in
in which the Hospital indicates that the Management will not contact it because "it
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an audit is carried out and the appropriate actions are taken, but this does not entail
that the interested party be informed”.
They indicate to this Agency that the aforementioned Hospital has a protocol according to which "if
undue access has occurred, it must be assessed by the Committee for the Protection of
Data (PD) what information would be given to the interested party, always informing him that the
right granted to it by the LOPD itself would only cover the
knowledge of the information submitted to treatment, but not which persons, within
within the scope of the organization of the person responsible for the file have been able to access
said information”.
They attach the aforementioned protocol entitled Audits to verify compliance in the
accesses to HC (Clinical History), whose copy works in the present actions of
inspection.
Regarding the actions taken in order to minimize the adverse effects and for the
final resolution of the incident.
In this regard, they provide a report from the La Paz Hospital detailing the sequence
of the facts, as well as a copy of the reports of the Nursing Department.
In one of these reports from the Nursing Directorate of the La Paz Hospital, it states:
“On Thursday, May 13 […the claimant…] requests a meeting with me to
inform me of an event that has occurred and that I, as Supervisor of the
Unity, be knowledgeable. He spent the night in the emergency room because, while
duty in the operating room, begins with […]. During his stay in the emergency room, he receives
a WhatsApp from a colleague of hers from the operating room where she literally says "the
plate is fine". [...the claimant...] responds "how do you know? have you looked at my
Clinic history? His partner replies that he has indeed consulted it in his
story, apologizing to him right then and there.
[...the claimant...]refers that this act seriously violates her privacy and that
this compañera (I quote words verbatim) "has been making life impossible for her
for 3 years, and this is the straw that breaks the camel's back".
Seeing the seriousness of the matter, I notify my Area Deputy and [...the claimant...]
expresses its wish that these facts do not go unpunished.
Likewise, we spoke with the colleague who has entered the clinical history
immediately admitting his mistake and repeatedly apologizing.
He expressed his desire to speak to [...the claimant...] and apologize. One time
discussed with the two parties involved and, at the request of [...the claimant...],
informs you of the ways available in the hospital to make the claims that
deem appropriate. He is also told that his partner is interested in
apologize to you personally for consulting your Story without your permission, and
in case at any point in your professional relationship you have felt wronged by your
attitude towards her."
Regarding the measures adopted to prevent similar incidents from occurring,
dates of implementation and controls carried out to verify its effectiveness.
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They only mention again the protocol of Verification Audits of the
compliance in the accesses to HC (Medical Record) of edition date on
03/23/2021, indicating that it can be seen in section 4 (Development), a
process of reactive and proactive audits, the latter being monthly
and following a specific structure and follow-up, to meet the requirements of
the Ministry of Health in case of improper access to medical records.
Regarding the security of existing personal data processing with
prior to the facts.
It has been requested to detail the technical and organizational measures adopted to guarantee
a level of security appropriate to the risks detected in relation to access
by health personnel to the clinical records of patients and the Policy of
security adopted by the entity in relation thereto.
They mention in this regard that, in the Security Policy of the Ministry of Health,
a copy of which they provide includes a "Decalogue of good practices for users of
information systems of the Ministry of Health" which is mandatory
compliance for all personnel who provide services in the Ministry (article
12.2).
Regarding the duty to respect data privacy, among other obligations, in
The Decalogue establishes the following:
- Users must access, exclusively, the information necessary for the de-
development of the functions of its activity and only to which it is authorized
(3.1).
- When accessing this information, users are obliged to comply with all measures
security measures established by the regulations on data protection, and other re-
Applicable requirements in accordance with the rules and procedures established in the CSCM
(3.2).
- All persons involved in any phase of the data processing of
personal nature are bound by professional secrecy with respect to these (3.3).
They indicate that the aforementioned Security Policy contemplates that "Failure to comply with
any of the behavior guidelines contained in this Decalogue of
good practices may give rise to the corresponding disciplinary responsibility, if
to do so, in application of the regulatory norms of the legal regime
own disciplinary of the user”.
They state that the La Paz University Hospital has a series of measures
established in order to maintain and consolidate the security of information and
privacy, such as the preservation of access traces and the performance
periodic training for staff.
FIFTH: On January 3, 2022, the Director of the Spanish Agency for
Data Protection agreed to initiate disciplinary proceedings against the claimed party,
in accordance with the provisions of articles 63 and 64 of Law 39/2015, of October 1,
of the Common Administrative Procedure of Public Administrations (in
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hereinafter, LPACAP), for the alleged infringement of article 5.1.f) of the GDPR and article
32 of the GDPR, typified in articles 83.5 and 83.4 of the GDPR, respectively.
The startup agreement was sent, in accordance with the rules established in the Law
39/2015, of October 1, of the Common Administrative Procedure of the
Public Administrations (hereinafter, LPACAP), by means of electronic notification,
being received on January 5, 2022, as stated in the certificate that works
on the record.
SIXTH: Once the initiation agreement was notified, the claimed party submitted a written
allegations in which, in summary, he stated:
-that the Hospital Responsible for Data Treatment, Hospital Universitario La
Paz (HULP), conducted an investigation into the facts, concluding after it that
there were improper accesses to your medical record during the interval in which the
complainant was in the ER (3:46 a.m. until 10:12 a.m. of the same
discharge date: June 13, 2020),
-That there are adequate and sufficient security measures for the management of
Clinical Histories, every time the activities of the users are recorded, retaining
the information needed to monitor, analyse, investigate and document
improper or unauthorized activities, allowing the identification at all times of the
person acting, counting the center with a protocol established for such purposes, in
which includes a process of reactive and proactive audits, the latter being
on a monthly basis and following a specific structure and follow-up, to attend to
the requirements of the Ministry of Health in case of improper access to
medical records,
-that they have a Security Policy at the level of the Ministry of Health, which
provides specific organizational measures for the maintenance of confidentiality
of the information accessed by the workers of the organization,
-that in the medical records management system there is a segregation of profiles
for the use of the tool, based on the performance of the work of each of
positions.
The document that establishes the assignment of Users and standard profiles is attached, in the
which state that: "it can be verified that due compliance is given at the beginning
minimum privilege, in accordance with the provisions of Annex II [op.acc.3] of the
National Security Scheme limiting each user to a strictly minimum
necessary to fulfill its obligations. In addition, the privileges are limited in a way
that users only access information necessary for the fulfillment of their
functions.
Therefore, there are different user models defined, such as:
• Administrative User
• Medical User (one per specialty)
• Nursing user (midwives, supervisors, nurses)
• Query User (only gives access to see the information, but does not allow registration)
• User for other non-medical groups
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The user models are made up of different profiles, and each profile
allows access to certain functions or powers, always having
present that, according to Law 41/2002, of November 14, basic regulation of the
patient autonomy and rights and obligations in terms of information and
clinical documentation, in its article 16 it is indicated that the clinical history is a
instrument intended primarily to ensure adequate assistance to the
patient, that is, the clinical history must be accessible in such a way that it can be
ensure that adequate care is provided to each patient, taking into account
the diversity of health professionals existing in the center. For example, in the
cases of emergencies, this medical history must be accessible to ensure the
vital interests of every citizen.
When a professional joins the center, they are assigned the model user
established, but if the professional changes their functions or requires new functions,
must have the approval of the Directorate. In the event that a user claims
new functions and there is no established model user, Management values the
relevance of creating a new model user.
Thus, and as we can see in the protocol, there are no generic users,
but rather, they are users created according to the functions they have
assigned, being the univocal and nominal access for each professional with their number of
Personal ID.”
-that they have signed a Confidentiality Commitment, through which they
informs the worker at the time of formalizing his contract with the hospital, about the
mandatory security and privacy policies for employees of the
Hospital,
-that training is provided regarding the security of personal data
staff,
-that the claimed party acknowledged its error and apologized to the claiming party,
indicating the lack of intentionality when accessing your information, from what they understand
that security measures, both technical and organizational, carried out by
the person in charge of the Treatment, are optimal and valid to guarantee the security and
confidentiality of patient data.
SEVENTH: On March 11, 2022, the instructor of the procedure issued
proposed resolution for infringement of the provisions of article 5.1 f) of the GDPR.
The aforementioned resolution proposal was sent, in accordance with the rules established in
Law 39/2015, of October 1, on the Common Administrative Procedure of
Public Administrations (hereinafter, LPACAP), by means of electronic notification,
being received on March 12, 2022, as stated in the certificate that works
on the record.
EIGHTH: On March 28, 2022, the respondent entity submitted a written
allegations to the Resolution Proposal, in which, in summary, he stated in relation to
with the established security measures that, in application of the National Scheme
Security, the activities of the users are recorded, retaining the information
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information necessary to monitor, analyze, investigate and document independent activities
unauthorized or unauthorized, allowing to identify at all times the person who acted
túa, which have implemented a process of reactive and proactive audits
you are going to be the latter of a monthly nature and following a structure and follow-up
concrete, to meet the requirements of the Ministry of Health in case of
improper access to medical records, that there is a segregation of profiles for the
use of the tool, based on the performance of the work of each of the
positions, limiting access to each user to the minimum, which by the employees
two, a Confidentiality Commitment is signed, through which the tra-
downstairs at the time of formalizing his relationship of his duties in this matter and that
an informative box (banner) appears warning that access to the platform
It must be done for healthcare purposes.
And in relation to other considerations, he affirms that the clinical history is an instrument
Fundamentally intended to ensure adequate care for the patient, it is
In other words, the medical history must be accessible in such a way that it can be ensured that it is
provides adequate assistance to each patient, training is given regarding
regarding the security of personal data, that the appropriate in-
investigations, which led to the necessary actions to solve the facts
events occurred, being able to identify at all times the person who made the access
due to history and that the mitigating measures carried out by the Hospital,
According to the request of the affected party, they have consisted of a warning
Finally, it mentions the Disciplinary procedure of the AEPD Procedure Nº:
AP/00056/2014. In said resolution issued on February 9, 2021, the AEPD had
opportunity to rule on possible improper and unjustified access to history
clinic of a worker patient of the Madrid Health Service. The AEPD, affirms the
concerned, would have reached the conclusion that SERMAS had established
sufficient security measures.
NINTH: In view of the facts considered proven and in accordance with the
powers that article 58.2 of Regulation (EU) 2016/679 (General Regulation of
Data Protection, hereinafter GDPR), grants each control authority and according to
the provisions of articles 47 and 48.1 of Organic Law 3/2018, of December 5,
Protection of Personal Data and guarantee of digital rights (hereinafter,
LOPDGDD) and in use of the power provided for in article 90.2 of Law 39/2015, of 1
October, of the Common Administrative Procedure of Public Administrations,
On August 23, 2022, the claimed party is notified of the consideration of
that, from the proven facts, not only the violation of article 5.1.f) of the
GDPR, but also that of article 32 of the same legal text.
TENTH: Once the Resolution Proposal was notified, the claimed party submitted a written
of allegations in which, in summary, he stated that an adequate provision of the
health care implies the participation of several services of the same center for the
achievement of the ultimate goal of the well-being and health of the patient, which, in fact, in the
health practice, it is common for an emergency service to lead to a
operating room service, in which it would be strictly necessary to preserve the
vital interests of the affected person, that the health personnel of both services have
immediate access to the patient's medical history in order to provide an adequate
emergency health care.
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They provide a report issued by the University Hospital of La Paz in which it is indicated, in
relation to the measure proposed by the AEPD that each of the professionals
could have access to the medical records only of those patients on whom
which carry out their activity, that said measure is extremely complex and difficult
to apply both at a technical and organizational level, and above all from the point of view
care, and this because health professionals and especially the area of nursing
Mería, are subject to continuous shift changes; can carry out their activity
on a rotating basis, going from morning shift to afternoon or night. Similarly, and
Regarding the unit, service or medical specialty, criteria could not be applied either.
ries of exclusion since the health personnel can change location. A prof-
professional can carry out their activity in a plant or specialty and the next day
or next turn in a different one.
Therefore, they consider that health personnel should have access to the different
diagnostic tests performed or consult reports from other specialists and/or professionals.
sionals that may influence the pathology being treated. They further add that the
patients can exercise their right to Free Choice of Specialist, Free Choice
Health Center, request one according to opinion or be channeled at optional request
to a different center to carry out a test or treatment not included in the portfolio
service center of origin. In these situations, health professionals,
have to be able to access the patient's complete medical record in order to offer a
adequate care for the sick.
Lastly, they deem it necessary for the profiles of the configuration system to come
configured as they are up to now since it is the best way to pre-
preserve the health of patients who come to the hospital where care is provided
and indicate that there is already a strong segregation of profiles for the use
of the tool, based on the performance of the work of each one of the positions, limited
giving each user access to the minimum.
In view of all the proceedings, by the Spanish Agency for Data Protection
In this proceeding, the following are considered proven facts:
PROVEN FACTS
FIRST: On November 22, 2020, the claimant filed a
claim before the Spanish Agency for Data Protection, for the alleged access
due to her medical history, by a co-worker.
SECOND: The Hospital Responsible for Data Treatment, carried out a
investigation of the facts, concluding after it that there were accesses
undue to her medical history during the interval in which the complainant
was in the ER (3:46 a.m. until 10:12 a.m. of the same day that
is discharged: June 13, 2020).
FUNDAMENTALS OF LAW
Yo
In accordance with the powers that article 58.2 of Regulation (EU) 2016/679
(General Data Protection Regulation, hereinafter GDPR), grants each
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control authority and as established in articles 47 and 48.1 of the Law
Organic 3/2018, of December 5, Protection of Personal Data and guarantee of
digital rights (hereinafter, LOPDGDD), is competent to initiate and resolve
this procedure, the Director of the Spanish Data Protection Agency.
Likewise, article 63.2 of the LOPDGDD determines that: "Procedures
processed by the Spanish Data Protection Agency will be governed by the provisions
in Regulation (EU) 2016/679, in this organic law, by the provisions
regulations dictated in its development and, insofar as they do not contradict them, with character
subsidiary, by the general rules on administrative procedures.”
II
In response to the allegations presented by the respondent entity to the Agreement of
beginning of the disciplinary procedure, the following should be noted:
The GDPR defines, in a broad way, "data security breaches
personal" (hereinafter security bankruptcy) as "all those violations of the
security that cause the destruction, loss or accidental or unlawful alteration of
personal data transmitted, stored or processed in another way, or the
unauthorized communication or access to said data.”
In the present case, it is clear that there was a data security breach
in the circumstances indicated above, categorized as breach of
confidentiality, as a consequence of exposure to a third party, of the
personal data relating to the health of the complaining party.
Article 32 of the GDPR states the following:
"1. Taking into account the state of the art, the application costs, and the
nature, scope, context and purposes of processing, as well as risks of
variable probability and severity for the rights and freedoms of individuals
physical, the person in charge and the person in charge of the treatment will apply technical and
appropriate organizational measures to guarantee a level of security appropriate to the risk,
which may include, among others:
a) pseudonymization and encryption of personal data
b) the ability to ensure confidentiality, integrity, availability and resilience
permanent treatment systems and services;
c) the ability to restore the availability and access to the personal data of
quickly in the event of a physical or technical incident;
d) a process of regular verification, evaluation and assessment of the effectiveness of the
technical and organizational measures to guarantee the security of the treatment.
2. When evaluating the adequacy of the security level, particular consideration will be given to
take into account the risks presented by data processing, in particular as
consequence of the destruction, loss or accidental or illegal alteration of data
personal information transmitted, preserved or processed in another way, or the communication or
unauthorized access to such data.
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3. Adherence to an approved code of conduct pursuant to article 40 or to a
certification mechanism approved under article 42 may serve as an element
to demonstrate compliance with the requirements established in section 1 of the
present article.
4. The controller and the processor shall take measures to ensure that
any person acting under the authority of the controller or processor and
have access to personal data can only process such data by following
instructions of the person in charge, unless it is obliged to do so by virtue of the Law of
the Union or of the Member States.
The aforementioned article provides that "the controller and the person in charge of the treatment
apply appropriate technical and organizational measures to ensure a level of
risk-appropriate security. Consequently, it does not adopt a closed relation of
technical and organizational measures, but these must be the appropriate ones in
function of the level of risk previously analyzed.
That said, article 32.1 includes an obligation of means and not an obligation
of result. Indeed, it indicates that "the person responsible and in charge of the treatment applied
Appropriate technical and organizational measures shall be taken to guarantee a level of safety
appropriate to the risk. In other words, it imposes the obligation to establish a level of security
security, and that level must be based on the risk analysis that every person in charge
must carry out in accordance with section 2 of said article:
"two. When assessing the adequacy of the security level, particular consideration will be given to
takes into account the risks presented by data processing, in particular as con-
sequence of accidental or unlawful destruction, loss or alteration of data
personal information transmitted, preserved or processed in another way, or the communication
unauthorized access or access to said data.”
The technological evolution and sophistication of systems for unauthorized access to systems
data issues means that the regulations cannot unconditionally impose
a total assurance of the absence of breaches of integrity or confidentiality.
But it does require that those responsible for the treatments must carry out an analysis of
risks and the implementation of an "adequate security level" for them.
Therefore, this duty is characterized as an obligation of means. He has so declared
The Supreme Court found in its recent judgment of February 15, 2022:
“The obligation to adopt the necessary measures to guarantee the security
of personal data cannot be considered an obligation of result, which
implies that a leak of personal data to a third party exists
responsibility regardless of the measures adopted and the activity
displayed by the person responsible for the file or treatment.
In obligations of means, the commitment acquired is to adopt
technical and organizational means, as well as deploying a diligent activity
in its implementation and use that tends to achieve the expected result with
means that can reasonably be described as suitable and sufficient for its
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achievement, for this reason they are called obligations "of diligence" or "of behavior".
treatment".
The difference lies in the responsibility in both cases, because while
in the obligation of result, responds to a harmful result due to the failure of the
security system, whatever its cause and the diligence used. In the
obligation of means is enough to establish technically appropriate measures and
implement and use them with reasonable care.
In the latter, the sufficiency of the security measures that the person responsible
has to establish has to be related to the state of technology in
at all times and the level of protection required in relation to personal data.
Sonales treated, but a result is not guaranteed. As established by art. 17.1
of Directive 95/46/EC regarding the security of the treatment the controller
of the treatment has the obligation to apply the technical and organizational measures
adequate measures «These measures must guarantee, taking into account the knowledge
existing technical foundations and the cost of application, a level of security
appropriate in relation to the risks presented by the treatment and to the nature
nature of the data to be protected. And in the same sense it is pronounced
nowdays the art. 31 of the European Union Regulation 2016/679, of
Parliament and of the Council on the protection of natural persons with regard to
regarding the processing of personal data and the free circulation of these
data and by which Directive 95/46/EC is repealed, by establishing with respect to the
security of processing than appropriate technical and organizational measures
they are «Taking into account the state of the art, the application costs, and the
nature, scope, context and purposes of processing, as well as risks
of variable probability and severity for the rights and freedoms of persons
You sound physical […]”.
We have already reasoned that the obligation that falls on the person responsible for the file
and on the person in charge of the treatment regarding the adoption of necessary measures.
measures to guarantee the security of personal data is not a
obligation of result but of means, without the infallibility of the
measures taken. Only the adoption and implementation of mea-
technical and organizational measures, which according to the state of technology and in re-
relation to the nature of the treatment carried out and the personal data in
matter, reasonably allow to avoid its alteration, loss, treatment or
Unauthorized access."
Having established the foregoing, that is, that the obligation of means imposed by article 32 of the
GDPR consists of adopting security measures in the treatment, tending to
avoid the production of a security breach in it. These obligations of-
must be established based on the risks that have been analyzed, and taking
into account the state of technology at all times and the level of protection required
do in relation to the personal data processed.
Accordingly, the analysis should be performed to determine if the in-
compliance consists of determining whether the measures were sufficient to prevent
address the risk of a security breach. In this case, it should be checked whether the measures
were adequate to ensure that unauthorized access to the history did not occur.
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clinical history of the claimant such as the one that occurred in this case. This with inde-
depending on whether such access actually occurred, or not.
It is necessary to analyze the allegations made in this procedure by the COUNCIL-
HEALTH RIVER. In relation to the security measures established:
- In application of the National Security Scheme, the activities are recorded
of users, retaining the necessary information to monitor, analyze,
investigate and document improper or unauthorized activities, allowing
identify at all times the person acting
- Implementation of a process of reactive and proactive audits, these being
latest on a monthly basis and following a specific structure and follow-up,
to meet the requirements of the Ministry of Health in case of access
you are wrong to medical records
- There is a segregation of profiles for the use of the tool, in
based on the performance of the work of each of the positions, limiting each
user access to a minimum.
- The employees sign a Confidentiality Commitment,
through which the worker is informed at the time of formalizing his relationship
tion of their duties in this matter.
- An information box (banner) appears warning that access to the platform
taforma must be performed for healthcare purposes
And in relation to other considerations he states:
- The clinical history is an instrument fundamentally designed to guarantee
adequate care for the patient, that is, the clinical history must be accessible
in such a way that it can be ensured that adequate assistance is provided.
cia to each patient
- Training is given regarding the security of personal data.
sound
- The appropriate investigations were carried out, which led to the actions
necessary to solve the events that occurred, being able to identify in
at all times the person who made the improper access to the history.
- The mitigating measures carried out by the Hospital, in response to the request for
the affected, have consisted of a warning
Finally, it mentions the Disciplinary procedure of the AEPD Procedure Nº:
AP/00056/2014. In said resolution issued on February 9, 2021, the AEPD had
opportunity to rule on possible improper and unjustified access to history
clinic of a worker patient of the Madrid Health Service. The AEPD, affirms the
concerned, would have reached the conclusion that SERMAS had established measures
sufficient security days.
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In relation to these allegations, the following must be stated:
Of the five security measures described, it can already be ruled out from the outset that
four of them can be effective in preventing unauthorized access. In
In the first place, the registration of accesses or the performance of audits are measures to
react a posteriori, once the access has occurred. Second, the bank
ner has only informative purposes, without preventing the professional from continuing in
if the access was not justified. Finally, the commitment to confi-
dentiality also does not prevent, by itself, unauthorized access.
Only the segmentation of access profiles to medical records could con-
be considered a valid and effective tool for the avoidance of events such as the
case you The MINISTRY OF HEALTH provides a very detailed annex with the profiles
of each of the types of professional category, distinguishing between ad-
ministerial and health, and within this last category, by types and specialties of
staff.
However, a measure that would be basic is not reflected in the document, and that is that
each of the health professionals could have access to the medical records
only of those patients on whom they deploy their care activity.
In this sense, article 16 of Law 41/2002, of November 14, basic regulation
autonomy of the patient and rights and obligations in terms of information
tion and clinical documentation provides that “1. The clinical history is an instrument
primarily aimed at ensuring adequate care for the patient. The prof-
care professionals of the center who carry out the diagnosis or treatment of the patient
patient have access to the patient's clinical history as a fundamental tool for
your proper assistance.
2. Each center will establish the methods that allow access to
the clinical history of each patient by the professionals who assist him” (underlining
is ours).
From reading this precept it is clearly inferred that, although the clinical history is
the instrument to provide health care to the patient, which must remain due to
duly guaranteed, so is the fact that access can only occur
to the clinical history by the professionals who assist you, not in general, but
with a particular character carrying out the diagnosis or treatment of the patient.
Let us remember that the assumption of fact that has given rise to this procedure con-
access by a nursing person from the Operating Room Service
regarding a patient who received medical assistance in the Emergency Department.
It is true that, as the interested party affirms, "the clinical history is an instrument destined
fundamentally to guarantee adequate care for the patient, that is, the
medical history must be accessible in such a way that it can be ensured that it is provided
adequate assistance to each patient", but it is no less so that they can implement-
are measured, depending on the patients assigned to each professional, of the service in
that the sanitary tasks are carried out, and of the work shifts of each professional.
that prevent a professional from accessing medical data related to
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aspect of a patient on whom care activity is not entrusted to
guna. The strong segregation of profiles that they say they have implemented has not prevented
giving access to a patient's clinical history, by a nurse who did not
I was entrusted with the treatment of the patient. This indicates the absence of measures
of adequate security.
The lack of adoption of a measure such as the one described means that it cannot be considered
that there are security measures that provide an adequate level of protection
to existing risks. In fact, the MINISTRY OF HEALTH itself recognizes the
illegality of the conduct, since he processed a disciplinary file against
the person who made the improper access, and which concluded with the imposition of a
warning.
In relation to the precedent invoked (exp. AP/00056/2014), it should be noted that
This is a disciplinary procedure that was carried out for very previous events.
res to the entry into force of the GDPR. The latter entered into force in May 2018, while
after the events occurred in May 2013. In said file, it was carried out
carry out a file of actions based on the fact that the MINISTRY OF HEALTH accredited
tó have in practice the measures required by the already repealed Royal Decree 1720/2007,
of December 21, (RLOPD) by which the regulations for the development of the Law are approved
Organic 15/1999, of December 13, Protection of Personal Data.
(LOPD)
The system established by the previous LOPD differs substantially from that established by
the current GDPR. While the former established a system of security measures
legally established (in conjunction with the RLOPD) to be understood
Once the security obligations have been fulfilled, the current GDPR is based on the
principles of proactive responsibility and data protection by design, that is,
in the establishment of the measures that are necessary based on the risks
valued inherent to a certain treatment. There is therefore no number
rus clausus of measures that the data controller must adopt, but rather
These must be established on a case-by-case basis, based on the risk analysis and the
data that is being processed.
In this regard, article 5.2 of the GDPR establishes, after listing the principles
regarding the protection of personal data, the following:
"two. The data controller will be responsible for compliance with the dis-
listed in section 1 and able to demonstrate it ("proactive responsibility")."
And regarding the principle of data protection by design, the GDPR requires:
"1. Taking into account the state of the art, the cost of the application and the nature of
nature, scope, context and purposes of the treatment, as well as the risks of different
great probability and seriousness that the treatment entails for the rights and freedoms
of natural persons, the data controller will apply, both in the
time of determining the means of treatment as at the time of pro-
proper treatment, appropriate technical and organizational measures, such as pseudonymous
mization, designed to effectively apply the principles of protection
of data, such as data minimization, and integrate the necessary guarantees in
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processing, in order to comply with the requirements of this Regulation and to protect
the rights of the interested parties
For all these reasons, the reference to the precedent constituted by file AP/00056/2014
it lacks any virtuality, since it was processed under a rarity regulation.
radically different from today.
For the rest, the criteria of the AEPD in relation to this type of unauthorized access
two has a clear precedent, produced in a disciplinary procedure processed
after the entry into force of the GDPR. This is file reference PS/00250/2021,
in which the EXTREMEÑO HEALTH SERVICE was penalized for an identical problem
the one that concerns us in this file. In the narration of the facts it appears:
"Inspection actions begin upon receipt of a claim document.
A.A.A. (hereinafter, the claimant), in which he states that there have been
undue access to his medical history by a worker
of the Extremadura Health Service (hereinafter SES), with professional category
of nurse. The accesses are made without the authorization of the claimant and without
that mediates a relationship that justifies it.”
This procedure should conclude with the imposition of two sanctions for these acts.
two: one for the violation of article 5.1.f) GDPR, in the terms explained in
the proposed resolution and another for article 32 of the Regulation. that is the criteria
of this Agency in relation to this type of assumptions.
II
In response to the latest allegations made by the respondent entity, it should be
point out the following:
First of all, we are dealing with a special category of personal data
(article 9.1 GDPR) to which the principle of prohibition of treatment is applicable,
unless one of the circumstances provided for in section 2 occurs. Therefore,
they incorporate an innate danger, and must be subjected to a higher standard of protection.
high.
Recital 51 provides, regarding the special categories of personal data,
that:
"Special protection deserves personal data that, by its nature, is
particularly sensitive in relation to fundamental rights and freedoms,
since the context of their treatment could entail significant risks for the
fundamental rights and freedoms. […] Such personal data should not be
treated, unless their treatment is permitted in specific situations
covered by this Regulation, taking into account that Member States
Members may establish specific provisions on data protection with
in order to adapt the application of the rules of this Regulation to the
compliance with a legal obligation or the fulfillment of a mission carried out in
public interest or in the exercise of public powers vested in the person responsible for the
treatment. In addition to the specific requirements of that treatment, there must be applied
the general principles and other rules of this Regulation, especially as regards
refers to the conditions of legality of the treatment. They must be established
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explicit exceptions to the general prohibition of treatment of these categories
personal data, among other things when the interested party gives his
explicit consent or in the case of specific needs, in particular
when the treatment is carried out in the framework of legitimate activities by
certain associations or foundations whose objective is to allow the exercise of the
fundamental liberties".
It is a priority to determine the role played by the Ministry of Health.
It follows that the person responsible for the processing of the data that is part of the
clinical history is the health center, public or private; they have the obligation to
prepare it, guard it and implement the necessary security measures so that it does not
is lost, not communicated to non-interested parties or can be accessed by third parties
Not allowed.
The GDPR explicitly introduces the principle of liability (article 5.2 GDPR),
that is, the person responsible for the treatment will be responsible for compliance with the
provided for in paragraph 1 of article 5 and must be able to prove it
“proactive responsibility”.
Report 0064/2020 of the Legal Office of the AEPD has emphatically expressed
that "The GDPR has meant a paradigm shift when addressing the regulation of the
right to the protection of personal data, which is based on the
principle of "accountability" or "proactive responsibility" as indicated by
repeatedly by the AEPD (Report 17/2019, among many others) and is included in the
Explanation of reasons for the Organic Law 3/2018, of December 5, Protection of
Personal Data and guarantee of digital rights (LOPDGDD)”.
The requested party, in its capacity as the data controller, should
have adopted and implemented, proactively, the technical and
organizational measures that are appropriate to evaluate and guarantee a level of
appropriate security to the probable risks of diverse nature and severity
linked to the health data processing carried out.
For these purposes, article 24 of the GDPR under the heading "Responsibility of the
responsible for the treatment" provides:
"1. Taking into account the nature, scope, context and purposes of the processing,
as well as risks of varying probability and severity for the rights
rights and freedoms of natural persons, the person responsible for the treatment applied
shall take appropriate technical and organizational measures in order to guarantee and be able to
show that the treatment is in accordance with this Regulation. said
measures will be reviewed and updated when necessary.
2. When provided in connection with processing activities,
the measures referred to in paragraph 1 shall include the application, for
part of the person responsible for the treatment, of the appropriate protection policies
of data. (…)”
For its part, article 25 of the GDPR under the heading "Data protection from the
sign and by default" provides:
"1. Taking into account the state of the art, the cost of the application and the nature of
nature, scope, context and purposes of the treatment, as well as the risks of dif-
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versa probability and seriousness involved in the treatment for the rights and
freedoms of natural persons, the data controller will apply, both
at the time of determining the means of treatment as at the time
of the processing itself, appropriate technical and organizational measures, such as the
pseudonymization, designed to effectively apply the principles of
data protection, such as data minimization, and integrate safeguards
necessary in the treatment, in order to comply with the requirements of this Regulation.
ment and protect the rights of the interested parties.
2. The data controller will apply the technical and organizational measures
with a view to ensuring that, by default, they are only processed
personal data that is necessary for each of the purposes
treatment specifics. This obligation will apply to the amount of data
personal information collected, to the extent of its treatment, to its retention period
vation and its accessibility. Such measures shall ensure in particular that, for
defect, the personal data are not accessible, without the intervention of the per-
sona, to an indeterminate number of natural persons. (…)”
Likewise, the LOPDGDD in article 28.1 states that:
"Those responsible and in charge, taking into account the elements enumerated
two in articles 24 and 25 of Regulation (EU) 2016/679, will determine the
appropriate technical and organizational measures that they must implement in order to guarantee
certify and certify that the treatment is in accordance with the aforementioned regulation, with the
this organic law, its development regulations and the applicable sectoral legislation
cable."
Consequently, the responsibility of the data controller must be established.
treatment for any processing of personal data carried out by himself or by
your account. In particular, the person responsible must be obliged to apply opportune measures.
and effective and must be able to demonstrate compliance of processing activities
compliance with the GDPR, including the effectiveness of the measures (GDPR recital 74).
In summary, this principle requires a conscious, diligent, committed and
proactive on the part of the person responsible for all data processing
personal you carry out.
In the present case, the defendant entity is charged with the lack of implementation of
the technical and organizational measures necessary to guarantee a level of security
appropriate to the risk derived from the treatment of patient health data (category
special category of personal data in accordance with the provisions of article 9.1 of the
GDPR), in order to prevent the violation of the principle of confidentiality, as
is clear from the assessment of the set of facts analyzed.
In general, it should be noted that in the treatment of clinical histories it is not
must wait until the improper access has occurred to react later
(which would shift the responsibility to the worker instead of the person responsible for the
treatment) but, based on the aforementioned principles of responsibility
proactive and data protection from the design, prevent improper access
produce.
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From the foregoing, it is evident that the defendant, as the person responsible for the ob-
object of study, has not shown the diligence that was required to establish
the security measures that are necessary to avoid the filtration or diffusion of
this type of data to third parties. In this sense, the configuration of technical measures
and organizational processes must be carried out so that, prior to carrying out the
processing of personal data, it is guaranteed that you can only have access to
the stories those personnel who carry out their care activity on the holder of
these.
In the event that the computer application that controls access to medical records
were correctly programmed, it could determine, at the moment in which it was
tenders access, if the person requesting it (according to their specialty, shift or activity in
that moment) must be legitimated to access it.
Lastly, data protection by design must be complemented by implementation.
periodic auditing, so that failures in the system can be detected
which, in turn, recommend modifying the access protocols in case of independent access.
bidos.
Consequently, the allegations must be dismissed, meaning that the
arguments presented do not distort the essential content of the offense that
is declared committed nor does it imply sufficient justification or exculpation.
The requested entity is accused of committing an infraction for violation of the
Article 5.1.f) of the GDPR, which governs the principle of confidentiality and integrity of the
personal data, as well as the proactive responsibility of the data controller
treatment to demonstrate its compliance and article 32 of the GDPR.
IV.
Regarding the health data, recital 35 of the GDPR states the following:
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“Personal data relating to health should include all personal data
relating to the state of health of the interested party that provide information about their state of
past, present or future physical or mental health. Information is included about the
natural person collected on the occasion of your registration for the purposes of health care,
or on the occasion of the provision of such assistance, in accordance with Directive
2011/24/EU of the European Parliament and of the Council; any number, symbol or data
assigned to a natural person who uniquely identifies them for the purposes of
sanitary; information obtained from tests or examinations of a part of the body or
of a body substance, including from genetic data and samples
biological, and any information related, by way of example, to a disease, a
disability, disease risk, medical history, treatment
clinical or physiological or biomedical state of the data subject, regardless of their
source, for example a doctor or other healthcare professional, a hospital, a device
physician, or an in vitro diagnostic test.”
For its part, Article 4 of the GDPR defines:
"2) "processing": any operation or set of operations carried out on
personal data or sets of personal data, either by procedures
automated or not, such as the collection, registration, organization, structuring,
conservation, adaptation or modification, extraction, consultation, use,
communication by transmission, diffusion or any other form of authorization of
access, collation or interconnection, limitation, deletion or destruction;”
7) "responsible for the treatment" or "responsible": the natural or legal person,
public authority, service or other body which, alone or jointly with others, determines the
purposes and means of processing; if the law of the Union or of the Member States
determines the purposes and means of processing, the controller or the
Specific criteria for their appointment may be established by Union law
or of the Member States;
10) "third party": natural or legal person, public authority, service or other body
of the interested party, the person in charge of the treatment, the person in charge of the treatment and the
persons authorized to process personal data under the direct authority of the
responsible or of the person in charge;”
V
The treatment of data from medical records is regulated by Law
41/2002, of November 14, basic regulation of patient autonomy and
rights and obligations regarding information and clinical documentation.
Its article 3 states:
"Clinical history: the set of documents that contain the data, assessments and
information of any kind on the situation and clinical evolution of a
patient throughout the care process.
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In article 16, the uses of the clinical history are established:
"1. The clinical history is an instrument fundamentally designed to guarantee
adequate patient care. The healthcare professionals at the center who
perform the diagnosis or treatment of the patient have access to the medical history
of it as a fundamental instrument for its adequate assistance.
2. Each center will establish the methods that allow access to
the medical history of each patient by the professionals who assist him.”
SAW
Article 5.1.f) of the GDPR
Article 5.1.f) of the GDPR establishes the following:
"Article 5 Principles relating to treatment:
1. Personal data will be:
(…)
f) processed in such a way as to guarantee adequate data security
personal data, including protection against unauthorized or unlawful processing and against
its loss, destruction or accidental damage, through the application of technical measures
or organizational procedures (“integrity and confidentiality”).”
In relation to this principle, Recital 39 of the aforementioned GDPR states that:
“[…]Personal data must be processed in a way that guarantees security and
appropriate confidentiality of personal data, including to prevent access
or unauthorized use of said data and of the equipment used in the treatment”.
It should be added that, in relation to the category of data to which a third party
someone else has had access, they are in the special category according to what
provided in art. 9 of the GDPR, a circumstance that implies an added risk that is
must be assessed in the risk management study and that the degree requirement increases
of protection in relation to the security and safeguarding of the integrity and
confidentiality of these data.
Consequently, it is considered that the accredited facts are constitutive of
infringement, attributable to the claimed party, due to violation of article 5.1.f) of the
GDPR.
VII
Classification of the infringement of article 5.1.f) of the GDPR
Article 83.5 of the GDPR provides the following:
"5. Violations of the following provisions will be penalized, in accordance with the
paragraph 2, with administrative fines of maximum EUR 20,000,000 or,
in the case of a company, an amount equivalent to a maximum of 4% of the
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total annual global business volume of the previous financial year, opting for
the highest amount:
a) the basic principles for the treatment, including the conditions for the
consent in accordance with articles 5, 6, 7 and 9;”
For its part, Article 71 of the LOPDGDD, under the heading "Infractions" determines what
Next:
"The acts and behaviors referred to in sections 4,
5 and 6 of article 83 of Regulation (EU) 2016/679, as well as those that result
contrary to this organic law.”
For the purposes of the limitation period for infringements, article 72 of the LOPDGDD,
under the rubric of offenses considered very serious, establishes the following:
"1. Based on what is established in article 83.5 of Regulation (EU) 2016/679,
are considered very serious and will prescribe after three years the infractions that
a substantial violation of the articles mentioned therein and, in particular, the
following:
a) The processing of personal data in violation of the principles and guarantees
established in article 5 of Regulation (EU) 2016/679.”
VIII
GDPR Article 32
Article 32 of the GDPR, security of treatment, establishes the following:
1. Taking into account the state of the art, the application costs, and the
nature, scope, context and purposes of processing, as well as risks of
variable probability and severity for the rights and freedoms of individuals
physical, the person in charge and the person in charge of the treatment will apply technical and
appropriate organizational measures to guarantee a level of security appropriate to the risk,
which may include, among others:
a) the pseudonymization and encryption of personal data;
b) the ability to ensure the confidentiality, integrity, availability and
permanent resilience of treatment systems and services;
c) the ability to restore availability and access to data
quickly in the event of a physical or technical incident;
d) a process of regular verification, evaluation and assessment of effectiveness
of the technical and organizational measures to guarantee the security of the treatment.
2. When evaluating the adequacy of the level of security, particular attention should be paid to
take into account the risks presented by data processing, in particular as
consequence of the destruction, loss or accidental or illegal alteration of data
personal information transmitted, preserved or processed in another way, or the communication or
unauthorized access to said data (The underlining is from the AEPD).
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Recital 75 of the GDPR lists a series of factors or assumptions associated with
risks to the guarantees of the rights and freedoms of the interested parties:
“The risks to the rights and freedoms of natural persons, serious and
variable probability, may be due to data processing that could cause
physical, material or immaterial damages and losses, particularly in cases in which
that the treatment may give rise to problems of discrimination, usurpation of
identity or fraud, financial loss, damage to reputation, loss of
confidentiality of data subject to professional secrecy, unauthorized reversal of the
pseudonymization or any other significant economic or social harm; in the
cases in which the interested parties are deprived of their rights and freedoms or are
prevent you from exercising control over your personal data; In cases where the data
personal treaties reveal ethnic or racial origin, political opinions, religion
or philosophical beliefs, union membership and genetic data processing,
data relating to health or data on sexual life, or convictions and offenses
criminal or related security measures; in cases where they are evaluated
personal aspects, in particular the analysis or prediction of aspects related to the
performance at work, economic situation, health, preferences or interests
personal, reliability or behavior, situation or movements, in order to create or
use personal profiles; in cases in which personal data of
vulnerable people, particularly children; or in cases where the treatment
involves a large amount of personal data and affects a large number of
interested.”
In the present case, as established in the facts and in the framework of the file
E/05028/2021, the AEPD requested to provide the date and time of the accesses, the details of the
type of data accessed, as well as supporting documentation of the
existing justification for such accesses. In the documentation provided, the
The defendant only acknowledges the existence of said accesses, although he does not pronounce
about the legitimacy of these nor does it provide a copy of the required investigation.
The consequence of this implementation of deficient security measures was the
exposure to a third party of personal data relating to the health of the
complaining party. That is, the affected person has been deprived of control over their
personal data relating to your medical history.
It should be added that, in relation to the category of data to which a third party
someone else has had access, they are in the special category according to what
provided in art. 9 of the GDPR, a circumstance that implies an added risk that is
must be assessed in the risk management study and that the degree requirement increases
of protection in relation to the security and safeguarding of the integrity and
confidentiality of these data.
This risk must be taken into account by the controller who must
establish the necessary technical and organizational measures to prevent the loss of
control of the data by the person responsible for the treatment and, therefore, by the
holders of the data that provided them.
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Therefore, the accredited facts constitute an infraction, attributable to the
claimed party, for violation of article 32 GDPR.
IX
Classification of the infringement of article 32 of the GDPR
The aforementioned infringement of article 32 of the GDPR supposes the commission of the infringements
typified in article 83.4 of the GDPR that under the heading "General conditions
for the imposition of administrative fines” provides:
Violations of the following provisions will be sanctioned, in accordance with the
paragraph 2, with administrative fines of maximum EUR 10,000,000 or,
in the case of a company, an amount equivalent to a maximum of 2% of the
total annual global business volume of the previous financial year, opting for
the highest amount:
a) the obligations of the person in charge and the person in charge according to articles 8,
11, 25 to 39, 42 and 43; (…)”
In this regard, the LOPDGDD, in its article 71 "Infractions" establishes that
"The acts and behaviors referred to in sections 4,
5 and 6 of article 83 of Regulation (EU) 2016/679, as well as those that result
contrary to this organic law”.
For the purposes of the limitation period, article 73 "Infractions considered serious"
of the LOPDGDD indicates:
"Based on what is established in article 83.4 of Regulation (EU) 2016/679,
are considered serious and will prescribe after two years the infractions that suppose a
substantial violation of the articles mentioned therein and, in particular, the
following:
f) The lack of adoption of those technical and organizational measures that result
appropriate to guarantee a level of security appropriate to the risk of the treatment,
in the terms required by article 32.1 of Regulation (EU) 2016/679”
x
Responsibility
Establishes Law 40/2015, of October 1, on the Legal Regime of the Public Sector, in
Chapter III relating to the "Principles of the Power to sanction", in article 28
under the heading "Responsibility", the following:
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"1. They may only be penalized for acts constituting an administrative offense
physical and legal persons, as well as, when a Law recognizes their capacity to
act, the affected groups, the unions and entities without legal personality and the
independent or autonomous patrimonies, which are responsible for them
title of fraud or fault."
Lack of diligence in implementing appropriate security measures
with the consequence of the breach of the principle of confidentiality constitutes the
element of guilt.
eleventh
Sanction
Article 83 "General conditions for the imposition of administrative fines" of the
GDPR in its section 7 establishes:
"Without prejudice to the corrective powers of the control authorities under the
Article 58(2), each Member State may lay down rules on whether
can, and to what extent, impose administrative fines on authorities and bodies
public establishments established in that Member State.”
Likewise, article 77 “Regime applicable to certain categories of
responsible or in charge of the treatment" of the LOPDGDD provides the following:
"1. The regime established in this article will be applicable to the treatment of
who are responsible or in charge:
(…)
c) The General State Administration, the Administrations of the communities
autonomous entities and the entities that make up the Local Administration.
2. When the managers or managers listed in section 1 commit
any of the offenses referred to in articles 72 to 74 of this law
organic, the data protection authority that is competent will dictate
resolution sanctioning them with a warning. The resolution will establish
likewise, the measures that should be adopted to cease the conduct or to correct it.
the effects of the offense committed.
The resolution will be notified to the person in charge or in charge of the treatment, to the body of the
that depends hierarchically, where appropriate, and to those affected who had the condition
interested, if any.
3. Without prejudice to what is established in the previous section, the data protection authority
data will also propose the initiation of disciplinary actions when there are
enough evidence for it. In this case, the procedure and the sanctions to be applied
will be those established in the legislation on the disciplinary or sanctioning regime that
be applicable.
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Likewise, when the infractions are attributable to authorities and executives, and
accredit the existence of technical reports or recommendations for the treatment that
had not been duly attended to, in the resolution in which the
sanction will include a reprimand with the name of the responsible position and
will order the publication in the Official State or regional Gazette that
corresponds.
(…)
5. They will be communicated to the Ombudsman or, where appropriate, to similar institutions
of the autonomous communities the actions carried out and the resolutions issued
under this article.”
In this case, it is deemed appropriate to sanction the party with a warning.
claimed, for violation of article 5.1.f) of the GDPR and for violation of article 32
of the GDPR, due to the lack of diligence when implementing the appropriate measures
of security with the consequence of the breach of the principle of confidentiality.
twelfth
Measures
Article 58.2 of the GDPR provides: "Each control authority will have all the
following corrective powers indicated below:
d) order the person in charge or person in charge of the treatment that the operations of
treatment comply with the provisions of this Regulation, where appropriate,
in a certain way and within a specified period;”
Likewise, it is appropriate to impose the corrective measure described in article 58.2.d) of the
GDPR and order the claimed party to, within a month, establish the measures
Adequate security measures so that the treatments are adapted to the requirements
contemplated in articles 5.1 f) and 32 of the GDPR, preventing them from occurring if
similar situations in the future.
The text of the resolution establishes which have been the infractions committed and
the facts that have given rise to the violation of the regulations for the protection of
data, from which it is clearly inferred what are the measures to adopt, without prejudice
that the type of procedures, mechanisms or concrete instruments for
implement them corresponds to the sanctioned party, since it is responsible for the
treatment who fully knows its organization and has to decide, based on the
proactive responsibility and risk approach, how to comply with the GDPR and the
LOPDGDD.
Therefore, in accordance with the applicable legislation and assessed the criteria of
graduation of sanctions whose existence has been accredited, the Director of the
Spanish Data Protection Agency RESOLVES:
FIRST: SANCTION the DEPARTMENT OF HEALTH OF
THE COMMUNITY OF MADRID, with NIF S7800001E, for a violation of article
5.1.f) of the GDPR, typified in article 83.5 of the GDPR.
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SECOND: SANCTION the DEPARTMENT OF HEALTH with a WARNING
OF THE COMMUNITY OF MADRID, with NIF S7800001E, for a violation of article
32 of the GDPR, typified in article 83.4 of the GDPR.
THIRD: REQUEST the MINISTRY OF HEALTH OF THE COMMUNITY OF
MADRID, to implement, within a month, the necessary corrective measures
to adapt its actions to the personal data protection regulations, which
prevent the repetition of similar events in the future, as well as to inform this
Agency within the same term on the measures adopted.
FOURTH: NOTIFY this resolution to the MINISTRY OF HEALTH OF THE
COMMUNITY OF MADRID, with NIF S7800001E.
FIFTH: COMMUNICATE this resolution to the Ombudsman, in accordance
with the provisions of article 77.5 of the LOPDGDD.
In accordance with the provisions of article 50 of the LOPDGDD, this
Resolution will be made public once the interested parties have been notified.
Against this resolution, which puts an end to the administrative process in accordance with art. 48.6 of the
LOPDGDD, and in accordance with the provisions of article 123 of the LPACAP, the
Interested parties may optionally file an appeal for reversal before the
Director of the Spanish Agency for Data Protection within a period of one month from
count from the day following the notification of this resolution or directly
contentious-administrative appeal before the Contentious-administrative Chamber of the
National Court, in accordance with the provisions of article 25 and section 5 of
the fourth additional provision of Law 29/1998, of July 13, regulating the
Contentious-administrative jurisdiction, within a period of two months from the
day following the notification of this act, as provided for in article 46.1 of the
referred Law.
Finally, it is noted that in accordance with the provisions of art. 90.3 a) of the LPACAP,
may provisionally suspend the firm resolution in administrative proceedings if the
The interested party expresses his intention to file a contentious-administrative appeal.
If this is the case, the interested party must formally communicate this fact through
writing addressed to the Spanish Data Protection Agency, presenting it through
of the Electronic Registry of the Agency [https://sedeagpd.gob.es/sede-electronica-
web/], or through any of the other registries provided for in art. 16.4 of the
aforementioned Law 39/2015, of October 1. You must also transfer to the Agency the
documentation proving the effective filing of the contentious appeal-
administrative. If the Agency was not aware of the filing of the appeal
contentious-administrative proceedings within a period of two months from the day following the
Notification of this resolution would terminate the precautionary suspension.
938-120722
Mar Spain Marti
Director of the Spanish Data Protection Agency
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es
