Article 86
Processing and public access to official documents

Official
Texts
Guidelines
& Caselaw
Review of
EU Regulation
Review of
Nat. Regulation
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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

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