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

1. How to strike the right balance between access to public information and data protection Nataša Pirc Musar Information Commissioner, Republic of Slovenia Budapest, 28th of September, 2010

2. Is FOI a human right?

3. Balancing FOI and PDP Proportionality No human right is an absolute right All but 4

4. Allbut… • torture, • slavery, • no conviction prior theoffence • is prescribedbythelaw, • no heavierpenaltyif it was not • prescribedbylaw at the time • oftheoffence Absolute Human Rights

5. Balancing human rights • FOI v. PDP – conflictthatoftenappears • Whichright is stronger? • is the hypothesis that balancing of PDPandFOI 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.

6. Balancingtests: Harm test Proportionality test Publicinterest test

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

8. 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.

9. Models of balancing FOI and PDP • “Trump” (explicit) model • Public interest test explicitly mentioned in FOIA • Chance model • Harm test possible • Synergy model • Balancing performed beforehand by the legislature • Best when accompanyig other models • Implicit model • No harm test, no PIT – what then? Copy right, Nataša Pirc Musar, draft of Ph.d.

10. Implicit model • The hardest for publicsectorbodies • 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) • Proportionalityprinciple as a general principle of law • Interferancewithprivatelife is justifiableif • “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.”

11. The best model Combination of the Synergy and Trump models

12. RTI Index, Article XIX Exemptions: 1. All exemptions are provided for only in the RTI law, 2. All exemptions contain a harm test limiting disclosure only when its dissemination would harm a specified legitimate interest, 3. All exemptions are subject to a public interest test where information may not be withheld unless the legitimate interest protected is greater than the public interest in 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.

13. Thank you for your attention