Access to Public Information, Privacy, Data Protection and Retention
Fernández v. Costa Rican Social Security Fund
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The General Court of Justice of the European Union (General Court) ruled that the European Union Parliament’s refusal to provide access to documents relating to how and when Members of the European Parliament (MEPs) spent their allowances was lawful. A group of journalists had requested access to these documents, and access was subsequently refused on the basis that some of the documents were not held by the European Parliament and those documents that were in their possession contained personal data of the MEPs. The journalists subsequently brought an action before the General Court seeking the annulment of the decisions refusing access to the documents requested. The General Court upheld the basis for refusing access to the documents. Since all the documents requested contained information concerning identified natural persons (namely MEPs), the Parliament could not grant access to such documents unless (i) the journalists could demonstrate that the transfer was necessary (and proportionate), and (ii) it had no reason to believe that the transfer could prejudice the legitimate interests of the persons concerned. The General Court held that the journalists had failed to demonstrate the necessity of the transfer of personal data in this case, and therefore could not rely on a derogation from the protection of personal data.
The case originated from requests that a group of 29 journalists submitted in July 2015 to the European Parliament (Parliament) seeking access to “copies of records, reports and other relevant documents showing details regarding how and when […] MEPs’ from each Member State ‘spent’, during various periods between June 2011 and July 2015, ‘their allowances (travel expenses, subsistence allowance and general expenditure allowance)’, documents showing ‘money allocated to them for staffing arrangements’, and the ‘records of MEPs’ bank accounts which [were] used specifically for general allowance payments”. Their application was made pursuant to Regulation 1049/2001 (Regulation) regarding public access to the European Parliament, Council and Commission documents.
In July and November 2015, the Secretary General of the Parliament rejected the journalists’ applications on two different grounds. Firstly, he relied on the protection of personal data based on the exception under Article 4 of the Regulation which allows the European institutions to refuse access to a document where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with the EU legislation regarding the protection of personal data. Secondly, he stated that the Parliament did not hold MEP’s bank account records.
In August 2015, the journalists lodged a confirmatory application with the Parliament for access to the requested documents. The Parliament rejected those requests on the basis that it did not hold some of the documents requested. It further relied on Article 4 of the Regulation and the excessive administrative burden involved in the handling of these requests.
The journalists brought a case to the General Court of the Court of Justice of the European Union, the competent judicial body for cases against EU institutions, challenging the Parliament’s refusal to grant access to the documents. They claimed that the Court should i) annul the contested decisions, and ii) order the Parliament to pay the costs. The journalists made five arguments before the General Court. First, the argued that Article 4 of the Regulation did not apply because the documents requested did not contain personal data and that, in any event, there was no demonstrated risk of prejudice to the legitimate interests of the persons concerned had the documents been disclosed. Second, the Parliament had failed to undertake a specific and individual examination of each of the documents requested, as required under the Regulation, and the Parliament could not legally rely on excessive administrative burden to refuse access. Third, the Parliament failed to comply with the Regulation by not providing partial access to the documents requested. Fourth, the Parliament infringed the obligation to state reasons laid down in the Regulation.
The General Court of the Court of Justice of the European Union (Court) began by reiterating that Regulation 1049/2001 (Regulation) was meant to give the fullest possible effect to the right of public access to documents held by the institutions, but that this right could not extend to documents which were not in possession of the institutions or which did not exist. The Court noted that, as Parliament provided MEPs with a monthly flat-rate allowance, the Parliament had no document detailing “physically or in time” the use by its members of those allowances. [para. 30] Consequently, the Parliament was correct when stating that it did not have any data on the actual expenditure incurred by MEPs in respect of the general expenditure allowance and it was not able to disclose the documents requested in that connection. As for the MEP’s bank accounts earmarked specifically for the use of general expenditure allowances, the Parliament explained it was not in possession of such documents either. The journalists provided no evidence to suggest these sets of documents were in the possession of the Parliament.
In light of the above, the Court only reviewed the journalists’ arguments in relation to the refusal to provide access to documents concerning daily allowances, travel allowances and parliamentary assistance allowances.
The Court first examined the argument that the Parliament could not rely on Article 4 of the Regulation since the documents did not fall within MEPs’ private sphere since they related to their duties as elected representatives. In so far as the documents contained personal data, the journalists argued that this personal data did not relate to MEPs’ privacy. The Court noted that the notion of “personal data” under EU law refers to any information relating to an identified or identifiable natural person. In the present case, the information requested concerned identified natural persons and pertained to travel costs and daily allowances which necessarily identified the MEPs concerned. The same was true of the documents held by the Parliament relating to parliamentary assistance expenses. The Court noted that the journalists seemed confused between the notions of private life and personal data, both of which are referred to in Article 4 of the Regulation. The Court went on to state that the classification of the data at issue as personal data could not be ruled out merely because the data was related to other data that was already public.
The Court recalled the principles stated in Article 15 (3) of the Treaty on the Functioning of the European Union (TFEU) that any citizen of the Union and any natural or legal person residing or having a registered office in a Member State have a right of access to the documents of the institutions of the European Union. It also noted that the right of public access to documents of the institutions was connected with the democratic nature of those institutions. Nonetheless, the Court noted that where access involved the processing of personal data, Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data applied. The Court noted that Regulation 45/2001 established a specific and reinforced system of protection of a person whose personal data could, in certain cases, be communicated to the public. The Court recalled that the derogations from the protection of personal data must be interpreted strictly. The journalists here tried to rely on a derogation on the basis that the transfer was necessary (and proportionate) and there was no reason to believe that that the transfer could prejudice the legitimate interests of the person concerned. These were two cumulative conditions, and the Court held that the first of these conditions was not met in this case.
The Court reasoned that, in order to meet the test of necessity, the person requesting the data must show that the transfer of personal data is the most appropriate of the possible measures for attaining the objective that they are pursuing through access to the information and that the measure is proportionate to that objective. The Court noted that this requires the person requesting the information to provide express and legitimate reasons to that effect. Turning to the facts of the present case, the journalists indicated various objectives being pursued, including the objective of enabling the public to verify the appropriateness of the expenses incurred by MEPs in the exercise of their mandate and to guarantee the public right to information and transparency. The Court held that these objectives were excessively broad and general. Therefore, the Court found that there was no established need for the transfer of the personal data in question. The Court also found the evidence presented in support of the objectives to be unconvincing. The Court also noted that the journalists had not submitted any express and legitimate reasons proving that the transfer of the personal data was the most appropriate of the possible measures in order to achieve the objective they pursued.
The Court moved on to the journalists’ second argument, that the Parliament had failed to undertake a specific and individual examination of each of the documents requested, as required under the Regulation, and the Parliament could not legally rely on excessive administrative burden to refuse access. The Court dismissed the first limb of this argument because it was based on a false premise. The Parliament had not treated all the documents as falling within the same category, as suggested by the journalists. Instead, it isolated the various documents into categories such as travel tickets, hotel bills, employment contracts and payslips. The second limb of the argument was also dismissed on the basis that it was ineffective. Since the Court had upheld the other reasons provided by the Parliament for refusing access, it was unnecessary to consider the independent and alternative ground relating to administrative burden.
The Court then dismissed the third argument, that the Parliament failed to comply with the Regulation by not providing partial access to the documents requested. The Court noted that the disclosure of a version of the documents requested expunged of all personal data, including, in particular, those concerning the names of the MEPs, would have deprived the access to these documents of any useful effect in light of the journalists’ objectives. Furthermore, the Court held that the redaction of all personal data in the documents requested would have been an excessive administrative burden having regard to the volume of documents requested. In relation to the journalists’ final argument, the Court found that the statement of reasons for the refusal to provide access enabled the journalists to ascertain the reasons for the decision.
In conclusion, the Court dismissed all actions and ordered the journalists to pay costs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In the present case, the General Court of the Court of Justice of the European Union (Court) confirmed the European Parliament’s refusal to grant access to information on the allowances of Members of the European Parliament and how they spent them. The decision restricts expression since the Court held that the MEP’s right to protection of their personal data prevailed over the right of citizens to access documents held by the European institutions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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