The application of certain restrictions on access to environmental information in accordance with AC

Personal Data

www.iidma.org

Ana BarreiraInstituto Internacional de Derecho y

Medio Ambientee-mail: ana.barreira@iidma.org

Task Force on Access to InformationGeneva, December 2014

Content

1. Personal data exception in the AC

2. What is understood by personal data?

3. Personal data exception under EU Law

4. A Spanish case on access to environmental information related to fisheries

5. Conclusions

1. Personal data exception in the AC

Art. 4 (4) A request for environmental information may be refused if the disclosure would adversely affect:

(f) The confidentiality of personal data and/or files relating to a

natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.

2.- Definition of personal data

"personal data" means any information relating to an identified or identifiable individual ("data subject“) CoE Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data and 1980 OECD Guidelines)

‘personal data’ shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity (D 95/46/EC and Reg (EC) No 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data)

Data Protection vs Access to Info

Right to Data Protection derives from Art. 8 ECHRs Data protection right is not an absolute right, must be balanced

against other rights Charter on Fundamental Rights of the EU: Limitations to that

right as long as these limitations are provided for by the law, respect the essence of those rights and freedoms and, subject to the pple of proportionality, are necessary and genuinely meet objectives of gral interest (Art. 52)

Freedom of info Right protects not only the right to impart but also to receive info (Art. 11 Charter and 10 ECHRs)

2.- Personal data exception under EU Law

Regulation 1049/2001 and Regulation 45/2001 on the protection of privacy constitute “national law” for the purpose of Article 4(4)(f)

Article 4(1)(b) of Regulation 1049/2001 protects “privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data”

Art. 18 Reg 45/2001: the person whose data has been requested to be released may object to such a transfer citing “compelling legitimate grounds relating to his or her particular situation” .

Art. 8 : a person who requested access to data to which Regulation 45/2001 applies must establish the need for having the data transferred

European Commission v. Bavarian Lager (CJEU) Társaság a Szabadságjogokért v Hungary (ECtHRs)

4.- Access to information requested by

Information requested:  List of vessels having special permits to fin sharks on board (2003-2007) and to the scientific report prepared by the SIO on the content of heavy metals (Hg) on fisheries and fisheries products requested to the Ministry of Rural and Marine Affairs.

Spanish case

Answer by the Administration: The list of vessels contains personal data and the report by the SIO is confidential

Law suit before the Spanish National Court: a list of vessels is not personal data as provided in the Spanish Organic Law and its Regulation on the protection of personal data. Even if the vessels are own by a natural person given an exclusion of the scope of the Regulation to data related to natural persons acting as shipowners.

The Court: vessels owned by companies are not protected The State lawyer appealed the judgement before the Supreme

Court and Oceana asked for its provisional execution which was granted and as a consequence the State lawyer withdrew the appeal

Position of the SADP

“... The protection granted by Organic Law 15/1999, of 13 of December, on Personal Data Protection does not apply to legal persons, not to professionals who organize its business activity under a company , not to individual businessmen who exercise a commercial activity when it is possible to differentiate its business activity from its private activity which is protected by Organic Law 15/1999”

Conclusions

AC requires that when personal data is requested can only be denied if adversely affect the confidentiality of personal data

The EU Law it is too restrictive regarding access to info which contains personal data

Personal data related to the exercise of an economic activity which pollutes or extract natural resources affecting the environment should not be included in the AC exception