Article 86
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).

Regulation
1e 2e

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.

1st proposal close

No specific provision

2nd proposal close

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.

Directive close

(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

31. Regulatory activity

(1) Personal data processed for the purposes of discharging functions to which this subsection applies are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of those functions.

(2) Subsection (1) applies to any relevant function which is designed—

(a) for protecting members of the public against—

(i) financial loss due to dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons concerned in the provision of banking, insurance, investment or other financial services or in the management of bodies corporate,

(ii) financial loss due to the conduct of discharged or undischarged bankrupts, or

(iii) dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons authorised to carry on any profession or other activity,

(b) for protecting charities [F1or community interest companies] against misconduct or mismanagement (whether by trustees [F2, directors] or other persons) in their administration,

(c) for protecting the property of charities [F1or community interest companies] from loss or misapplication,

(d) for the recovery of the property of charities [F1or community interest companies] ,

(e) for securing the health, safety and welfare of persons at work, or

(f) for protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.

(3) In subsection (2) “relevant function” means—

(a) any function conferred on any person by or under any enactment,

(b) any function of the Crown, a Minister of the Crown or a government department, or

(c) any other function which is of a public nature and is exercised in the public interest.

(4) Personal data processed for the purpose of discharging any function which—

(a) is conferred by or under any enactment on—

(i) the Parliamentary Commissioner for Administration,

(ii) the Commission for Local Administration in England F3...F3...F4. . . ,

(iii) the Health Service Commissioner for England F5...F5...F6. . . ,

[F7 (iv)the Public Services Ombudsman for Wales,]

(v) the Assembly Ombudsman for Northern Ireland, F8. . .

(vi) the Northern Ireland Commissioner for Complaints, [F9or]

[F10(vii) the Scottish Public Services Ombudsman, and]

(b) is designed for protecting members of the public against—

(i) maladministration by public bodies,

(ii) failures in services provided by public bodies, or

(iii) a failure of a public body to provide a service which it was a function of the body to provide, are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function.

[F11 (4A) Personal data processed for the purpose of discharging any function which is conferred by or under Part XVI of the Financial Services and Markets Act 2000 on the body established by the Financial Services Authority for the purposes of that Part are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of the function.]

[F12 (4B) Personal data processed for the purposes of discharging any function of the Legal Services Board are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of the function.]

[F13 (4C) Personal data processed for the purposes of the function of considering a complaint under the scheme established under Part 6 of the Legal Services Act 2007 (legal complaints) are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of the function.]

(5) Personal data processed for the purpose of discharging any function which—

(a) is conferred by or under any enactment on the [F14 the Competition and Markets Authority ], and

(b) is designed—

(i) for protecting members of the public against conduct which may adversely affect their interests by persons carrying on a business,

(ii) for regulating agreements or conduct which have as their object or effect the prevention, restriction or distortion of competition in connection with any commercial activity, or

(iii) for regulating conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market, are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function.

[F15 (5A) Personal data processed by a CPC enforcer for the purpose of discharging any function conferred on such a body by or under the CPC Regulation are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function.

(5B) In subsection (5A)—

(a) “ CPC enforcer ” has the meaning given to it in section 213(5A) of the Enterprise Act 2002 but does not include the [F16 Competition and Markets Authority ];

(b) “CPC Regulation” has the meaning given to it in section 235A of that Act. ]

[F17 (6) Personal data processed for the purpose of the function of considering a complaint under section 113(1) or (2) or 114(1) or (3) of the Health and Social Care (Community Health and Standards) Act 2003, or section 24D, 26 F18 . . . or 26ZB of the Children Act 1989, are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function. ]

[F19 (7)Personal data processed for the purpose of discharging any function which is conferred by or under Part 3 of the Local Government Act 2000 on—

(a) the monitoring officer of a relevant authority,

(b) F20 . . . or

(c) the Public Services Ombudsman for Wales, are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of that function.

(8) In subsection (7)—

(a) “relevant authority ” has the meaning given by section 49(6) of the Local Government Act 2000, and

(b) any reference to the monitoring officer of a relevant authority, or to an ethical standards officer, has the same meaning as in Part 3 of that Act.]

33A. Manual data held by public authorities

(1) Personal data falling within paragraph (e) of the definition of “data” in section 1(1) are exempt from—

(a) the first, second, third, fifth, seventh and eighth data protection principles,

(b) the sixth data protection principle except so far as it relates to the rights conferred on data subjects by sections 7 and 14,

(c) sections 10 to 12,

(d) section 13, except so far as it relates to damage caused by a contravention of section 7 or of the fourth data protection principle and to any distress which is also suffered by reason of that contravention,

(e) Part III, and

(f) section 55.

(2) Personal data which fall within paragraph (e) of the definition of “data” in section 1(1) and relate to appointments or removals, pay, discipline, superannuation or other personnel matters, in relation to—

(a) service in any of the armed forces of the Crown,

(b) service in any office or employment under the Crown or under any public authority, or

(c) service in any office or employment, or under any contract for services, in respect of which power to take action, or to determine or approve the action taken, in such matters is vested in Her Majesty, any Minister of the Crown, the National Assembly for Wales, any Northern Ireland Minister (within the meaning of the Freedom of Information Act 2000) or any public authority, are also exempt from the remaining data protection principles and the remaining provisions of Part II.

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