Garante per la protezione dei dati personali - 9304448

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Garante per la protezione dei dati personali - 9304448
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Authority: Garante per la protezione dei dati personali (Italy)
Jurisdiction: Italy
Relevant Law: Article 5(1)(b) GDPR
Article 5(1)(c) GDPR
Type: Advisory opinion
Outcome: n/a
Decided: 23.03.2020
Published: n/a
Fine: None
Parties: Udine City Council
National Case Number/Name: 9304448
European Case Law Identifier: n/a
Appeal: n/a
Original Language(s): Italian
Original Source: Garante per la protezione dei dati personali (in IT)
Initial Contributor: {{{Initial_Contributor}}}

The Italian Data Protection Authority (Garante) delivered an opinion stating that the Udine City Council acted lawfully when providing for a limited civic access to the minutes of a district council meeting. The Garante considered the disclosure of the full handwritten minutes would have been unlawful, since violating the principles of purpose limitation and data minimization under Article 5(1)(b) and (c) GDPR.

English Summary[edit | edit source]

Facts[edit | edit source]

A request of civic access was presented to the Udine City Council concerning a copy of the minutes of a district council meeting. The administration answered by providing part of the minutes where, in particular, the handwritten signatures were omitted. However, in relation to the other minutes requested, which were handwritten, the administration explained to the applicant that they needed to be typed, in order to comply with personal data protection rules. Not satisfied with this answer, the applicant insisted on receiving also a copy of the original handwritten minutes.

Dispute[edit | edit source]

The Garante had to establish whether the disclosure of the minutes in their handwritten original form would have contravened any of the personal data protection principles, or if the public interest in accessing such administrative documents outweighed them.

Holding[edit | edit source]

The Garante underlined the public nature of the documents concerned, which anyone has the right to know and use, thus making their disclosure necessary for meeting public interest. However, the Garante considered that such interest had to be balanced with the principles of purpose limitation and data minimization under Article 5(1)(b) and (c) GDPR.

In the Garantes’s view, the interest of the applicant could be satisfied through the display of the typed minutes. Moreover, the Garante considered that a circulation of the handwritten minutes would be likely to result in a prejudice to the confidentiality and protection of the personal data of the subjects concerned.

In the light of the above, the Garante confirmed that the omission of the handwritten subscriptions and the provision of only the typed minutes were justified, and that the balance between the public interest and personal data protection principles supported the limited civic access in the present case.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the Italian original. Please refer to the Italian original for more details.

DATA PROTECTION SUPERVISOR

HAVING REGARD TO Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, 'General Data Protection Regulation' (hereinafter referred to as 'GPSD');

HAVING REGARD TO Article 154(1)(g) of the Personal Data Protection Code - Legislative Decree No 196 of 30 June 2003 (hereinafter 'the Code');

HAVING REGARD to Article 5, of Legislative Decree no. 33 of 14 March 2013 on "Reorganization of the rules concerning the right of civic access and the obligations of publicity, transparency and dissemination of information by public administrations";

HAVING REGARD TO Determination no. 1309 of 28/12/2016 of the National Anti-Corruption Authority (ANAC), adopted in agreement with the Guarantor, entitled "Guidelines providing operational indications for the definition of exclusions and limits to civic access pursuant to Article 5, paragraph 2, of Legislative Decree no. 33/2013", in the Official Gazette General Series no. 7 of 10/1/2017 and in http://www.anticorruzione.it/portal/public/classic/AttivitaAutorita/AttiDellAutorita/_Atto?ca=6666 (hereinafter "ANAC Guidelines on civic access");

HAVING REGARD to the provision of the Guarantor no. 521 of 15/12/2016, containing the aforementioned "Understanding on the outline of the ANAC Guidelines providing operational indications for the definition of exclusions and limits to civic access", in www.gpdp.it, web document no. 5860807;

HAVING REGARD to the request for the opinion of the person in charge of the prevention of corruption and transparency of the Municipality of Udine, submitted pursuant to Article 5, paragraph 7, of Legislative Decree no. 33 of March 14, 2013 on "Reorganization of the regulations regarding the right of civic access and the obligations of publicity, transparency and dissemination of information by public administrations";

CONSIDERING that the aforesaid Article 5, paragraph 7, provides that the Guarantor shall take a decision within ten days of the request;

CONSIDERED that the short period of time to render the expected opinion does not allow the state to convene the Board of the Guarantor in good time;

CONSIDERED therefore that the conditions for the application of Article 5, paragraph 8, of Regulation No. 1/2000 on the organization and operation of the office of the Guarantor are met, which provides that "In cases of particular urgency and indifference that do not allow the convening in good time of the Guarantor, the chairman may adopt the measures falling within the competence of the body, which cease to have effect from the time of their adoption if they are not ratified by the Guarantor in the first meeting useful, to be convened no later than the thirtieth day";

HAVING REGARD to the documents in the proceedings;

PREFACE

With the note in deeds, the person in charge of the prevention of corruption and transparency of the Municipality of Udine has asked the Guarantor for the opinion provided for by Article 5, paragraph 7, of Legislative Decree no. 33/2013, as part of the procedure relating to a request for review of the measure of partial acceptance of a civic access.

Specifically, the subject of civic access is the issue of a copy of the minutes of a district council of the Municipality.

The deeds show that the administration found civic access by providing some minutes with the obscured handwritten signatures of the Chairman and Vice-Chairman, while in relation to the other minutes requested - given that they were "handwritten" - the following were "handwritten". - was represented to the applicant that "In order to be able to proceed with the release of the same through the extraction of a copy it is necessary that the minutes in question are typed, in order to comply with the provisions on the protection of personal data by the Privacy Guarantor".

Nevertheless, the applicant for access has insisted on receiving "also the minutes drawn up "of fist" specifying [of] not wish [rare] that the same are typed, [but] to acquire a copy of the originals".

OBSERVES

From the documents it emerges that the object of civic access are some minutes of a District Council of the Municipality.

The particularity of the case submitted to the attention of the Guarantor resides in the circumstance that some of the aforesaid minutes have been drawn up by hand and, therefore, the administration wants to provide the subject with the typed copy.

According to what is reported in the request for an opinion to the Guarantor by the person in charge of the prevention of corruption and transparency, the Municipality "has considered it necessary to typewrite the minutes in consideration of what is indicated in par. 8 of the Guidelines of 28 December 2016, adopted by the ANAC in agreement with [the] Guarantor, in which it is specified that the Administration, in allowing or not allowing access, must take into due consideration "the cases in which the knowledge of certain personal data by anyone who could facilitate the occurrence of any identity theft or creation of fictitious identities" prohibiting, for example, the indiscriminate circulation of handwritten signatures, a principle which, in the opinion of the undersigned, cannot but extend analogously to the issue of a document, such as the one which is the subject of the request, drawn up "by fist", also in view of the fact that, according to the provision of Article 3, paragraph 1, of the D. lgs. 33/2013, the data and documents provided to the applicant through generalised access are considered as "public" and anyone has the right to know them and to use and reuse them free of charge in accordance with art. 7".

For the profiles of competence of this Authority, limited only to the protection of personal data, it should be noted that the Legislative Decree no. 33/2013 has recognized the right of anyone to "access to data and documents held by public administrations, in addition to those subject to publication [mandatory]". (Article 5(2)) and that access must be refused "if the refusal is necessary to avoid a concrete prejudice to the protection [of] personal data, in accordance with the relevant legislative provisions" (Article 5-bis(2)(a).

In this regard, it must be remembered that - unlike the documents to which access has been granted under Law no. 241 of 7/8/1990 - the data and documents received following a request for civic access become "public and anyone has the right to know them, to use them free of charge, and to use and re-use them in accordance with Article 7", although their further processing must in any case be carried out in compliance with the limits deriving from the legislation on the protection of personal data (Article 3, paragraph 1, of Legislative Decree no. 33/2013). Consequently, it is also in the light of this amplified regime of publicity of civic access that the existence of a possible concrete prejudice to the protection of the personal data of the subjects against whom the data is processed must be assessed, on the basis of which it is decided whether or not to refuse access to the information and documents requested, or to provide partial access.

Furthermore, it is necessary to respect - in any case - the principles of the RGPD of "purpose limitation" and "data minimisation", according to which data must be "collected for specified, explicit and legitimate purposes and subsequently processed in a way that is not incompatible with those purposes", as well as "adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed" (art. 5, par. 1, letter b and c).

This means, in the case in point, that it is necessary to avoid, in particular, providing further personal data that is excessive and disproportionate with respect to the purpose of civic access to "favour widespread forms of control over the pursuit of institutional functions and the use of public resources and promote participation in public debate" (art. 5, par. 2, Legislative Decree no. 33/2013), which could facilitate the occurrence of any identity theft or the creation of fictitious identities through which to carry out fraudulent activities; such as, for example, the handwritten signature or, by analogy, also other handwritten and graphological elements that can be uniquely referred to individuals (cf, with reference to the handwritten signature, provision no. 243 of 15/5/2014 containing the "Guidelines on the processing of personal data, also contained in administrative acts and documents, carried out for the purposes of publicity and transparency on the web by public entities and other obliged entities, in OJ no. 134 of 12/6/2014 and www.gpdp.it, web document no. 3134436, part one, par. 9.b; ANAC Guidelines on civic access, par. 8.1 and note 12).

Therefore, in the light of current legislation and the above mentioned indications contained in the ANAC Guidelines, it is agreed with the measure of acceptance of the administration's civic access and it is considered that the cognitive interest of the applicant can be fully satisfied through the display of the full version of the typed minutes of the district councils, with omission of handwritten subscriptions. In this regard, in fact, taking into account the particular regime of publicity of the documents subject to civic access and the relative reusability by third parties, in relation to the case examined, an indiscriminate circulation of the same minutes drawn up "by hand" could, however, have unfavourable effects on the parties against whom the minutes are drawn up, as described above, with prejudice to the relative confidentiality and protection of personal data (Article 5-bis, paragraph 2, letter a, of Legislative Decree no. 33/2013).

ALL OF THE ABOVE MENTIONED THE GUARANTOR

expresses its opinion in the above mentioned terms on the request of the Head of Corruption Prevention and Transparency of the Municipality of Udine, pursuant to art. 5, paragraph 7, of Legislative Decree no. 33/2013.