Article 86 GDPR

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Article 86 - Processing and public access to official documents
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Chapter 10: Delegated and implementing acts

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 the European and national public institutions. There are many ways to obtain transparency; one of them is obtaining access to 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” (Article 86 GDPR). Obviously, disclosure of official documents containing personal data for transparency reasons may lead to a GDPR-relevant data processing with subsequent risks.

Personal Data may be Disclosed

The provision under comment, however, seems to simply acknowledge the existence of a potential conflict between transparency and data protection without really providing clear indications as to how disentangle it.

Take, for example, Article 85 GDPR. In that case, the GDPR assigns Member States the task of reconciling freedom of expression (including artistic, literary and academic expression) with data protection rules. In doing so, the Regulation establishes a set of limits that the national legislator is required to respect. For instance, the provision clarifies that the state measure must be “necessary to reconcile” privacy and freedom of expression. Article 85 also lists which parts of the GDPR the national legislator may derogate in order to perform its task.

I this respect, Article 86 does not provide any specific instruction. 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 argues that “When examining Article 86 GDPR one can wonder what normative value it actually has”.[1]

The GDPR Remains Applicable

Having considered the above, it seems reasonable to conclude that the GDPR remains fully applicable in its entirety, with the consequent application of, inter alia, the principles of fair processing,[2] lawfulness of processing, rights of the data subject and subjection to scrutiny by the supervisory authorities.

The indications offered by the case-law, although not generous, at least confirm this conclusion. For instance, a request for access to personal data was considered well-grounded because the data related to professional activities carried out in the context of a “public defender”, could not be “considered to be a private matter”.[3]

A somewhat similar approach was adopted by the CJEU. A Dutch journalist had filed an access request concerning the functioning of an additional pension scheme for MEPs. The Parliament 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, “it must therefore be 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”.[4]

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 serve only as general indications for both courts and lawmakers, leaving the actual assessment to a case by case analysis.

Decisions

→ You can find all related decisions in Category:Article 86 GDPR

References

  1. See, Kranenborg, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 86 GDPR, p. 1216 (Oxford University Press 2020).
  2. On this point, careful literature makes it clear that “the Union or Member State law referred to in Article 86 on which disclosure can be based is no different from a Union or Member State law referred to in Article 6 GDPR. Recital 154 also seems to go in this direction as it states that public access to official documents may be considered to be in “the public interest”. See, Kranenborg, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 86 GDPR, p. 1217 (Oxford University Press 2020).
  3. ECtHR, Magyar Helsinki Bizottsdg, 18030/11, 8 November 2016, margin number 194 (available here).
  4. CJEU, Dennekamp v. European Parliament, T-115/13, 15 July 2015, margin number 124 (available here).