1 The balance between access to public information and personal data protection: The German Experience Sven Hermerschmidt, Office of the Federal Commissioner for Data Protection and Freedom of Information, Berlin, Germany Workshop held in Skopje, 6 September, 2011

2 The Federal Commissioner for Data Protection and Freedom of Information Seite 2 Freedom of Information in a federal system Germany is a federal state consisting of 16 Länder 11 Länder have FOI law into force Since 01/01/2006 Federal Law on FOI

3 The Federal Commissioner for Data Protection and Freedom of Information Seite 3 What FOI Law for what? Information held by federal authorities: – Subject to Federal Freedom of Information Act Information held by Länder or municipal authorities as well as by universities, public broadcasting institutions etc. – Subject to Freedom of Information Act of the respective Land (in case there is one) – In 5 Länder no FOI Law exists: No free access to information

4 The Federal Commissioner for Data Protection and Freedom of Information Seite 4 Federal Freedom of Information Act (FFOIA) Everyone has the right to access towards all federal authorities, agencies etc. – Any natural person (regardless nationality), any legal person or even citizen‘s groups etc. could be applicant includes journalists – Basically free access without conditions – No need to indicate special interests to get information But: A high number of exemptions from this principle

5 The Federal Commissioner for Data Protection and Freedom of Information Seite 5 FOI as a human right? Art 5 of German Constitution (Grundgesetz) – guarantees every person the freedom to inform himself without restrictions from generally accessible sources (“recipient‘s freedom“) – does not guarantee the right to get information from state institutions Constitution of the Land of Brandenburg – is the only German constitution which protects FOI as a human right

6 The Federal Commissioner for Data Protection and Freedom of Information Seite 6 Data Protection as a human right Federal Constitutional Court (“Census judgment” 1983) considers data protection as a human right DP right derives from – Right of privacy – Human dignity DP has as a constitutional human right a stronger position than FOI

7 The Federal Commissioner for Data Protection and Freedom of Information Seite 7 Balance between data protection and freedom of information Only relevant if personal data are subject to a FOI request – “Personal data” is defined as any information about personal or material circumstances of an identified or identifiable natural person – Same meaning as in the DP law FFOIA guarantees free access to information unless private or public interests require to keep the information secret – One important private interest is protection of personal data

8 The Federal Commissioner for Data Protection and Freedom of Information Seite 8 Handling of personal data under FOI Law Art. 5 FFOIA provides for the balance between DP and FOI General Approach: Balance of interests Need to identify the applicant’s interest – Exemption from the general unconditional access Applicant‘s interest to obtain information Data subject‘s interest to exclude the applicant

9 The Federal Commissioner for Data Protection and Freedom of Information Seite 9 Protection of specific personal data Human resources data of public servants are absolutely protected Contact details of external experts, consultants or comparable persons are generally free accessible Certain contact details of officers who where officially active in the case are freely accessible

10 The Federal Commissioner for Data Protection and Freedom of Information Seite 10 Procedure If personal data are subject to an FOI request – the applicant may choose to obtain information without personal data (e.g. blackened details) – if the applicant wants to obtain personal data the data subject will be informed about the request – data subject may express consent If data subject does not agree the authority has to balance the interests – Authority may grant access even against the data subject’s will

11 The Federal Commissioner for Data Protection and Freedom of Information Seite 11 German Press Law I Press Law grants an extensive right to obtain information by state institutions Right to obtain information is one element of freedom of press and media Freedom of press is guaranteed by the constitution – Very few exemptions from this right Information could be given orally or written

12 The Federal Commissioner for Data Protection and Freedom of Information Seite 12 German Press Law II Information may not be given if – ongoing procedures may interfered – a conflict with provisions on secrecy appears – an overriding public or private interest would be infringed – this would cause an unacceptable effort

13 The Federal Commissioner for Data Protection and Freedom of Information Seite 13 German Press Law III Overriding private interests could be – privacy/data protection rights – business secrets – intellectual property rights If personal data are concerned Press Law requires balancing interests of journalist and data subject – Importance of freedom of press for the society has to be considered when balancing interests

14 The Federal Commissioner for Data Protection and Freedom of Information Seite 14 Press Law & FOI Law Press Law precedes FOI Law as long as a journalist wants to obtain information only Press law right – is free of charge – obliges the state institution to respond without delay – provides for less exemptions But: – Press Law does not provide for a right of access to public information! – Inspection of files, disclosure of documents etc. could only rely on FOI Law

15 The Federal Commissioner for Data Protection and Freedom of Information Seite 15 Obligations of the Media Freedom of expression and media is of high importance for an open democratic society No state supervision over press Any censorship is prohibited Press and media law provides for some obligations – Publishing of imprints – Indicating responsible journalists – Right of reply

16 The Federal Commissioner for Data Protection and Freedom of Information Seite 16 Data protection in the media Data protection law is largely not applicable – Exemptions based on Art 9 Dir. 95/46/EC (Media Privilege) Data protection requirements are subject to press codex Press codex – Code of Conduct – is binding for all members of the German Press Council – provides for an autonomous regulation and self- monitoring of the press

17 The Federal Commissioner for Data Protection and Freedom of Information Seite 17 German Press Codex I Key obligations for journalists: – no unfair methods when collecting personal data – respect for privacy unless there is a public interest for publishing even personal data when reporting about criminal investigations, crimes, accidents person shall not be identified principle of social rehabilitation shall be respected no publication about diseases related to identifiable persons no identifiable reporting on suicides

18 The Federal Commissioner for Data Protection and Freedom of Information Seite 18 German Press Codex II When reporting about criminal investigations in dubio pro reo-principle shall be respected Obligation of rectification if reporting was proven as incorrect Data subject’s right of being informed is limited – Protection of journalistic sources must be ensured FOI law is not applicable at all

19 The Federal Commissioner for Data Protection and Freedom of Information Seite 19 German Press Codex III When violating press codex personal data shall be erased or blocked Personal data processed for journalistic purposes are subject to journalistic secret – Transfer of data to other journalists for that purpose only Sanctions of complaints committees – Editorial notes – Censures – Public reprimands

20 Contact: Sven Hermerschmidt Office of the Federal Commissioner for Data Protection and Freedom of Information