got privacy?  Musings on the state of Privacy in a connected world.
 
By Raul Mendez, LLM Information Technology Law, Digital Privacy Professional.

The Bavarian Lager case could possibly represent the biggest hurdle in achieving transparency for European Union institutions. 
If transparency is to be achieved, the Access to Documents Regulation[1] must be amended.  The amended regulation should take into consideration the Opinion issued by the European Data Privacy Supervisor (EDPS) on June of 2008. [2]

TRANSPARENCY
Article 255 of the Treaty establishing the European Community, as amended by the treaty of Amsterdam gave any resident or citizen of the Member States the right to access all documents from the parliament, the Commission and the Council.  This right was set to be regulated by Regulation (EC) No 1049/2001.[3] 

There were two additional important features included in Regulation1049/2001:
1)     The EU institutions are assigned the same rights and obligations as the member state’s Institutions have in the context of access to all documents;
2)     The EDPS, an independent Officer, is created.  His duties include the monitoring and the implementation of access to European Union documents.
It is fit to recognize that before 2001, the EU institutions were not required to have an open records regulation.

THE AMENDMENT
By 2007, a body of law had been formed.  The agencies also gained the necessary experience in handling document requests. 

The Commission then proposed the rewording of the regulation.  The aim was to require more transparency.  The intention was an effort to have a better informed society with better processes. 

The EDPS issued an opinion regarding the changes.  The EDPS disagreed with the wording of several parts of the regulation.  The opinion was partially based on the body of law that had been developed so far.

POWER TO INTERVENE
One of the rights the EDPS has is the power to intervene in any privacy related lawsuit.  The EDPS has intervened in Bavarian Lager and in at least 13 other cases.

Thus, the EDPS has been highly influential in the interpretation of the law.  It is the position of the EDPS that the standard used, when evaluating the release on information against the Data Protection Directives, should be one of harm of privacy rather than the requirement of necessity for the release of the data.  The standard set by the court creates a big hurdle for applicants.

IMPORTANCE OF TRANSPARENCY
Transparency was provided by the Amsterdam Treaty amendments.  Before the inception of the treaty, the European Union Institutions were exempted from the release of information requirements. 

Transparency is a right that must be protected.  It is a corner stone of a good government.

HOW TRANSPARENCY HAS BEEN SUCCESSFUL IN SWEDEN
In Sweden, Governmental Agencies are required to release any document in their possession, free of charge, when requested.  These documents include electronic data bases or documents’ meta-data.

If agencies are of the opinion that the data should not be released, there is a court mandated review.  The request and objection to the release are reviewed by a special court which applies the right to access in a broad and liberal manner.  If the court finds for the applicant, the decision is final and it may not be appealed.

The system has allowed for a better Government.  Agencies can be scrutinized and held accountable for their actions.  Sweden’s system has allowed the citizenry to discover wrongful actions and cover ups.  Transparency allows citizens to feel more confident in trusting their government.

The European Union should follow Sweden’s lead.  The review of the regulations has to be revisited.  The Commission is currently assessing the language and possibly the rewording the regulation.[4]  Balance between privacy and transparency has to be achieved, and there must be consistency.

If you would like to contact Raul please use either 206-264-0849 or raulmendez1@earthlink.net.

[1] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
[2] Opinion of 30 June 2008 on the Proposal for a Regulation regarding public access to European Parliament, Council and Commission documents, OJ C 2, 7.01.2009, p. 7
[3]Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which became applicable on 3 December 2001.
[4]http://www.edps.europa.eu/EDPSWEB/edps/EDPS?lang=en (last visited on July 6th, 2010) 
 


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