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Article 86
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Processing and public access to official documents

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(154)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 (14) 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.

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(72) Whereas this Directive allows the principle of public access to official documents to be taken into account when implementing the principles set out in this Directive,

The GDPR

The right to personal data protection cannot be an absolute obstacle to the communication of administrative documents. For this reason, Article 86 stipulates that the 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 order to reconcile public access to official documents with the right to the protection of personal data.

Recital 154 stipulates that “public authorities and public bodies” should be understood to mean authorities and bodies governed by the law of a Member State in the area of the public access to documents.

These communications must however be in compliance with the law of the Union or the Member State to which the public authority or the public body holding the said administrative documents is subject.

The Directive

The Directive did not address the problem of the access to administrative documents and its reconciliation with the data protection (see however recital 72).

Potential issues

The Regulation refuses to unify the rules in order to ensure the difficult balance between the right of access to administrative documents, data protection and reliance on national law (even though a Union law may also address it).

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Regulation
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Art. 86

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.
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No specific provision
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Art. 80a

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 law 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.
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(72) Whereas this Directive allows the principle of public access to official documents to be taken into account when implementing the principles set out in this Directive
Spain
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Article 21.- Communication of data between public administrations.- Organic Law 15/1999 on the Protection of Personal Data.-

1. Personal data collected or drawn up by public administrations in the performance of their tasks shall not be communicated to other public administrations for the exercise of different powers or powers relating to other matters, unless such communication has been provided for in the provisions creating the file, or in a higher-ranking provision regulating its use, or where the communication is for the purpose of subsequent processing for historical, statistical or scientific purposes.

2. Personal data which a public administration obtains or draws up on behalf of another administration may be communicated.

3. Notwithstanding the provisions of Article 11.2.b), communication of data obtained from sources accessible to the public shall apply to files in private ownership only with the consent of data subject or when a law stipulates otherwise.

4. In the cases provided for in paragraphs 1 and 2 of this Article, the consent of the data subject referred to in Article 11 of this Law shall not be required.
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General provisions on access to information of public interest

§ 26 Data Protection Act

(1) Any person or body attending to statutory State or municipal government functions or performing other public duties provided for by the relevant legislation (hereinafter referred to collectively as “body with public service functions”) shall allow free access to the public information and information of public interest they have on file to any person, save where otherwise provided for in this Act.

(2) The name of the person acting on behalf of a body with public service functions shall be considered information of public interest, including his job description and responsibilities, title and other personal data that may be of interest relating to the public function, as well as all other personal data that is to be made public by law. Personal data which are considered information of public interest may be disclosed under the principle of target-specific data processing. Personal data which are considered information of public interest may be published on websites in accordance with Schedule No. 1 and the Act on the Legal Status of Persons Entrusted with Public Functions.

(3) Unless otherwise prescribed by law, any data, other than personal data, that is processed by bodies or persons providing services prescribed mandatory by law or under contract with any governmental agency, central or local, if such services are not available in any other way or form, to the extent necessary for their activities shall be deemed information of public interest.

(4) The bodies or persons referred to in Subsection (3) shall comply with requests for access

Established: by Section 1 of Act XCI of 2013. In force: as of 21. 06. 2013.

Enacted by Section 4 of Act CXXIX of 2015, effective as of 1 October 2015.
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