How to strike the right balance between access to public information and data protection

Nataša Pirc MusarInformation Commissioner, Republic of Slovenia

Budapest, 28th of September, 2010

Is FOI a human right?

Proportionality

Balancing FOI and PDP

No human right is an absolute right

All but4

All but…

• torture, • slavery, • no conviction prior the offence is prescribed by the law,• no heavier penalty if it was not prescribed by law at the time of the offence

Absolute Human Rights

Balancing human rights

• FOI v. PDP – conflict that often appears• Which right is stronger?

• is the hypothesis that balancing of PDP and FOI should produce similar results in different jurisdictions correct?

• balancing opposing rights is always possible despite the fact that it is not explicitly mentioned in the national FOIA.

Balancing tests: 1.Harm test2.Proportionality test3.Public interest test

What is the best model to “explain” to first level bodies, holders of the requested document, that balancing is possible and even required?

Different models

The sooner balancing test can be applied (i.e., at the lowest possible level), which is connected to clear or vague or even non existing provisions about balancing in the national FOIA, the more efficient the system.

Models of balancing FOI and PDP

1. “Trump” (explicit) model• Public interest test explicitly mentioned in FOIA

2. Chance model• Harm test possible

3. Synergy model• Balancing performed beforehand by the legislature

• Best when accompanyig other models

4. Implicit model• No harm test, no PIT – what then?

Copy right, Nataša Pirc Musar, draft of Ph.d.

Implicit model

• The hardest for public sector bodies– offers the most possibilities for denying access to personal data

since an implicit balancing is rarely applied by the public sector body which holds a specific document

• HCLU v. Hungary (Társaság a Szabadságjogokért )

• Proportionality principle as a general principle of law• Interferance with private life is justifiable if

– “in accordance with the law, is necessary in a democratic society for the pursuit of legitimate aims, and is not disproportionate to the objective pursued.”

The best model

Combination of the Synergy and Trump models

RTI Index, Article XIXExemptions:

1. All exemptions are provided for only in the RTI law,

2. All exemptions contain a harm test limiting disclosure only when its disseminationwould harm a specified legitimate interest,3. All exemptions are subject to a public interest test where information may not bewithheld unless the legitimate interest protected is greater than the public interestin disseminating the information,

4. No general exemption for cabinet documents,5. No general exemption for information relating to intelligence or security services,6. Information relating to crimes against humanity cannot be restricted,7. Information relating to serious human rights violations cannot be restricted,8. Requirement for providing redaction for documents/information that is withheld,9. Bodies have the obligation to inform applicants of the reasons for withholding information,10. Limit of confidentiality for 15 years.

Thank you for your attention