Freedom of information and protection of personal data Hungarian experiences 5TH MEETING OF DATA PROTECTION AUTHORITIES 28 OCTOBER 2008

Legislative background Two informational rights fundamentally provided for in the Constitution of the Republic of Hungary Two informational rights fundamentally provided for in the Constitution of the Republic of Hungary Act LXIII. of 1992 on the protection of personal data and public access to data of public interest Act LXIII. of 1992 on the protection of personal data and public access to data of public interest The approach of the Hungarian Data Protection Act is radical and very transparent, the language of the act leaves hardly any ambiguities or contradictions for interpretations The approach of the Hungarian Data Protection Act is radical and very transparent, the language of the act leaves hardly any ambiguities or contradictions for interpretations

Legislative background Data of public interest shall mean any information or knowledge, not falling under the definition of personal data, processed by an organ or person performing a state or local government function or other public function determined by a rule of law, or any information or knowledge pertaining to the activities thereof, recorded in any way or any form, irrespective of the manner it is processed and its independent or collected character Data of public interest shall mean any information or knowledge, not falling under the definition of personal data, processed by an organ or person performing a state or local government function or other public function determined by a rule of law, or any information or knowledge pertaining to the activities thereof, recorded in any way or any form, irrespective of the manner it is processed and its independent or collected character Personal data shall mean any data relating to a specific (identified or identifiable) natural person (hereinafter referred to as ‘data subject’) as well as any conclusion with respect to the data subject which can be inferred from such data. In the course of data processing such data shall be considered to remain personal as long as their relation to the data subject can be restored. An identifiable person is in particular one who can be identified, directly or indirectly, by reference to his name, identification code or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity Personal data shall mean any data relating to a specific (identified or identifiable) natural person (hereinafter referred to as ‘data subject’) as well as any conclusion with respect to the data subject which can be inferred from such data. In the course of data processing such data shall be considered to remain personal as long as their relation to the data subject can be restored. An identifiable person is in particular one who can be identified, directly or indirectly, by reference to his name, identification code or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity

Legislative background New concept: data public on the grounds of public interest which means any data, other than public information, that are prescribed by law to be published or disclosed for the benefit of the general public New concept: data public on the grounds of public interest which means any data, other than public information, that are prescribed by law to be published or disclosed for the benefit of the general public Possibility to separate public data of the public sector from data public on the grounds of public interest of the private sector Possibility to separate public data of the public sector from data public on the grounds of public interest of the private sector data covered here are data covered here are a) not processed by state or local authorities or agencies or other bodies attending to public duties specified by law, but rather to the disclosure or access on the grounds of public interest ordered by law; b) personal data and the publicity of or access to these data which is required by law on the grounds of public interest Principle laid down by the interpretation of the Constitutional Court - Decision 60/1994. Principle laid down by the interpretation of the Constitutional Court - Decision 60/1994.

Typical areas and issues of the conflict of the two informational rights Areas where the Act does not provide unambiguous guidelines Areas where the Act does not provide unambiguous guidelines Disclosure of data of persons performing public functions Disclosure of data of persons performing public functions - Personal data relating to the sphere of tasks of a person exercising the sphere of tasks and powers of public organs, furthermore the personal data relating to the sphere of tasks of a person performing public function shall be regarded as data public on grounds of public interest – par. 4 of Art 19. of the Data Protection Act - Rules on public access to these data are applicable  Legislator has to fill in the gap in the legislation and regulate that data related to the scope of duties of the person performing public functions - harmonisation of relevant sectoral laws not finished

Typical areas and issues of the conflict of the two informational rights Findings based on cases: Findings based on cases: - Personal data related to the scope of duties of the person performing public functions may be excluded from the principle of publicity only by law - Data related to the scope of duties of the person performing public functions has to be set apart from the data not related thereto - Different aspects of public access to declaration of wealth / property – provisions of the Data Protection Act prevail

Typical areas and issues of the conflict of the two informational rights The conflict of the protection of business or commercial data and freedom of information The conflict of the protection of business or commercial data and freedom of information All information that is not personal is considered as data of public interest All information that is not personal is considered as data of public interest Not all business information should be regarded as secret - the transparency of the public sector and public funds could not be guaranteed without access to certain business data Not all business information should be regarded as secret - the transparency of the public sector and public funds could not be guaranteed without access to certain business data Legal instruments, e. g. the Civil Code and the Fair Competition Act, provide for the protection of business secrets Legal instruments, e. g. the Civil Code and the Fair Competition Act, provide for the protection of business secrets Boundaries of public access in this field drawn by means of opinions of the Commissioner Boundaries of public access in this field drawn by means of opinions of the Commissioner

Typical areas and issues of the conflict of the two informational rights When a company has no appreciable interest in keeping business data secret: When a company has no appreciable interest in keeping business data secret: a)a supervisory authority, such as an environmental or consumer protection agency, determines a violation and imposes a fine b)other type involves public bodies with discretion over public funds, for instance in conducting privatization, concession, and public procurement procedures, or when natural or legal persons enter into a financial or business relationship with the central or local budget Companies dealing with the government must suffer the disclosure of their business data to an extent Companies dealing with the government must suffer the disclosure of their business data to an extent

Typical areas and issues of the conflict of the two informational rights Findings based on cases: Findings based on cases: - Inspection of the contracts is denied - not all business information related to business activities is to be treated as business secret, the disclosure and the mandatory publication of data is stipulated by law, citing reasons of important public interest - Cases related to public funds - disclosure of data processed in various tender processes, anyone may become familiar with the winning bid, transparency of the tender process is public interest, and therefore precedes private interest of the protection of business secret - Company providing central budget subsidy for non-governmental organisations - organisation performing public duties, the information pertaining to the operation can be considered as data of public interest, the extension of the public scope of data by law serves the transparency of the use of public funds.

Thank you for your attention! Katalin Egri Office of the Parliamentary Commissioner for Data Protection and Freedom of Information