FOI requests don’t trump individuals’ right to privacy, rules European Court

Officials can preserve their anonymity despite freedom of information requests about their handling of controversial matters, the European Court of Justice has confirmed.

Officials can preserve their anonymity despite freedom of information requests about their handling of controversial matters, the European Court of Justice has confirmed.

The court upheld an earlier decision not to release the names of officials under freedom of information rules because they objected to being identified.

The decision in the long-running "Bavarian Lager" case, which went against the brewer and the European Data Protection Supervisor (EDPS), highlighted the importance of getting a better balance between privacy protection and the public's right to information, EDPS Peter Hustinx said.

The EDPS had argued that the court should have regard to the harm the officials' privacy would suffer if their names came out. The court held that Bavarian Lager had not made its case for the release of the names.

The case relates to the difficulties the brewer had in breaking into the UK market. The regulations were later changed to make it easier for the German brewer to sell into British pubs.

Bavarian Lager applied for access to commission documents generated in the course of its investigation of its original complaint against the UK's anti-competitive beer regulations.

The commission granted access to the documents, including a report from a confidential meeting, except for the names of five individuals who had attended the meeting, and who either objected to the disclosure of their names or could not be contacted. The brewer contested the refusal to disclose the names.

In a statement the EDPS said the court confirmed the earlier decision that surnames and forenames are personal data, and that the communication of such data falls within the definition of "processing" under the data protection regulation.

"However the court ruled that the requirements of the data protection regulation apply in all circumstances where the right of access to a public document is exercised," the EDPS said.

This extended the lower court's view that the requirements of that regulation were only applicable in those situations where the privacy or the integrity of the individual would be infringed, contrary to article 8 of the European convention of human rights.

Hustinx said the judgement confirmed the importance of the current review of how to reconcile two fundamental rights: access to documents and data protection, in the light of the Lisbon Treaty.

The EDPS had argued that the commission took too strict an approach when interpreting both the access to documents regulation and the data protection regulation. He said the harm to privacy should be a necessary threshold to justify refusal of access to documents containing personal details.

The EDPS issued an opinion on current proposals to amend the regulations in June 2008, with an alternative text for the relevant provision of the regulation.

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