Access To Official Documents In The Light Of The General Data Protection Regulation

• Author: Andrea Kajcsa
• Pages: 193-198

ACCESS TO OFFICIAL DOCUMENTS IN THE LIGHT OF THE GENERAL

DATA PROTECTION REGULATION

Teaching assistant Andrea KAJCSA1

Abstract

Public access and data p rotection are both fundamental rights provided for in a wide range of legislation a t

the national Romanian level and European level. Usually, there is no hierarchical order and no clashes between the

two rights. Still, given that the purpose of the right to access to official p ublic documents is to foster acc ess to all

documents, whereas the Data Protection Regulation must guarantee the protection of personal data, a tension can arise

in some cases. We try in our paper to analyze h ow these two rights have intertwined before the GDPR and will continue

to cross paths after this entered into force. The study uses the logica l method, analyzes the legal provisions, as well as

the solutions derived from the judicial practice. The conclusions aim at unrevealing some pointers for good practice in

the public administration.

Keywords: GDPR, personal data, public authority, public information, o fficial documents.

JEL Classification: K23, K38

1. Introduction

Public access to official documents responds to a general preoccupation in most democratic

societies, where there exists an interest in the disclosure of the information contained in documents

issued or handled by public authorities. Regulation no. 1049/2001 of the European Parliament and

of the Council of 30 May 2001 regarding public access to European Parliament, Council and

Commission documents2 states, in its introduction, that „openness enables citizens to participate

more closely in the decision-making process and guarantees that the administration enjoys greater

legitimacy and is more effective and more accountable to the citizen in a democratic system.

Openness contributes to strengthening the principles of democracy and respect for fundamental

rights”. The Regulation aims to ensure the widest possible degree of public access to documents for

any EU citizen. The right to public access is limited by a number of exceptions, one of which is

essential for the paper, relating to privacy and data protection3.

On the other hand, Regulation no. 2016/679 on the protection of natural persons with

regard to the processing of personal data and on the free movement of such data (GDPR) is one of

the most wide ranging pieces of legislation passed by the EU in recent times and it has been adopted

in times when the internet and the new technologies find themselves in a dual moment: on one side

the development of new technologies and on the other hand the need of regulation4. The Regulation

introduces concepts such as the ‘right to be forgotten’, data portability, data breach notification and

accountability (to name only a few) that will take some getting used to and putting truly and

meaningfully into practice.

In Romania, the directive and the law regarding data protection have been applied and

interpreted by the Romanian courts, as proven by the numerous cases solved by these5.

1 Andrea Kajcsa - University of M edicine, Pharmacy, Sciences and Technology of Targu Mureş, Ro mania, andrea.kajcsa@

yahoo.com.

2 Published in OJUE L 145, 31/05/2001.

3 “In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests

should be protected by way of exceptions. The institutions should be entitled to protect their internal consultations and deliberations

where necessary to safeguard their ability to carry out their tasks. In assessing the exceptions, the institutions should take account of

the principles in Community legislation concerning the protection of personal data, in all areas of Unio n activities” - Recitals 11 of

the Regulation. Article 4 states that “The institutions shall refuse access to a document where disclosure would undermine the

protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the

protection of personal data”.

4 Daniel-Mihail Şandru, Irina Alexe (coordinators), Legislaţia Uniunii Europen privind pro tecţia datelor personale, Universitară

Publishing House, Bucharest, 2018, p. 8.

5 Daniel-Mihail Şandru, Dragoş-Alin Călin, Constantin Mihai Banu, Aplicarea şi interpretarea Directivei 95/46 de către instanţe

române. Tipologii şi consecinţe juridice, in vol. Irina Alexe, Nicolae-Dragoş Ploeşteanu, Daniel Mihail Şandru (coordinators),