The Government Information (Public Access) Act is based on the principle that all information held by the government is in principle public in order to promote a well-functioning democratic society. The premise that this information should in principle be available for anyone to consult may be at odds with the protection of personal data.
Disclosure of information can be made at the request of citizens/companies (so-called passive disclosure), but also without request, such as through publication at the government's own initiative of decisions (so-called active disclosure).
The disclosure of information containing personal data will be discussed below. After the general aspects, a passive disclosure checklist and an active disclosure checklist will then address the most relevant sections.
art. 10 and 11 Wob contain grounds for refusal and restrictions. These articles apply to both passive disclosure and active disclosure;
art. 10 section 1 Wob provides that special personal data will not be provided unless it has been clearly established that providing them will not infringe personal privacy;
if this has not been unambiguously established, this is an absolute ground for exception and the administrative authority must not provide the requested information;
art. 10 section 2 Wob provides that personal data will not be provided if disclosure does not outweigh the interest in respecting personal privacy. This is a relative ground for exception, because a weighing of interests must precede disclosure;
this relative ground for exception does not apply if the person concerned has consented to disclosure (art. 10 section 2 under e Wob). This therefore concerns only the personal data of the person who has given consent, i.e. not the personal data of third parties;
it follows from art. 11 Wob, it follows that in the case of a request for information from documents drawn up for internal deliberation, no information is provided on the policy opinions contained therein;
information on personal policy opinions can be provided in a form that cannot be traced back to individuals, for the sake of good and democratic administration;
if the person, who has expressed the views, consents, the information may be provided in personally reducible form;
with regard to opinions of an official or mixed advisory committee, provision of information about personal policy views may take place, if this has been made known by the administrative body before the commencement of work of the committee;
please note: passive and active disclosure of information containing personal data constitutes processing under the AVG. This means, among other things, that the processing must be included in the processing register under Art. 30 AVG and that the FG has certain powers under Art. 39 AVG.
any person may submit a request for information about personal data contained in documents on an administrative matter to an administrative authority or an institution, department or company operating under the responsibility of an administrative authority;
a document is a written document or other material held by the administrative authority that contains data
a request can be made either orally or in writing;
granting a Wob request means that the information requested becomes publicly available to everyone;
the requestor states the administrative matter or the document relating to it in his request;
an applicant does not have to have an interest in his request;
if the request is formulated in too general a manner, the administrative body shall request clarification of the request as soon as possible and the administrative body shall assist the requester in doing so;
if the request concerns data in documents held by another administrative body, the requester shall be referred to that body if necessary;
the decision on a request is made orally or in writing;
a total or partial refusal of the request is made in writing;
in the case of an oral request, the refusal is put in writing if the applicant so requests;
the decision is also made in writing if the request for information concerns a third party and the third party has requested it. In that case, the third party shall also be sent the information relating to him;
before the administrative authority decides, if it is expected that an interested party (who has not submitted the request) will have objections to the provision of the information, he shall be given the opportunity to express his views (either orally or in writing);
the administrative authority shall decide as soon as possible, but no later than 4 weeks after receipt of the request, with the possibility of adjourning the decision for a maximum of 4 weeks;
the aforementioned decision period shall be suspended until the day on which the interested party (other than the applicant) submits an opinion or the period set for this purpose has expired unused;
if the administrative body decides to provide the information, the information shall be made public at the same time as the decision, unless an interested party is expected to object. In that case, the information shall be provided no earlier than two weeks after the decision has been announced;
an objection to the decision may be lodged with the administrative body within 6 weeks. The decision on the objection may then be appealed to the court within six weeks;
if the personal data in question are personal data, the relative restriction on disclosure does not in principle apply if the person concerned has consented to disclosure. The administrative body need not check each time whether such consent has been given.
ask the applicant (explicitly) for clarification if it is unclear whether he is invoking the Wob;
ask whether the applicant knows that requesting his own personal data involves making it public for everyone;
state in the request the administrative matter or the document relating to it with regard to the requested data;
is the request sufficiently specified, if not, ask for clarification;
are the requested data laid down in a written document or other material;
pay attention to the position of the interested third party and the possibility to submit a view;
if the request relates to special personal data, the request should be rejected unless it has been unambiguously established that the disclosure will not infringe personal privacy;
if it relates to ordinary personal data, a prior check must be made to determine whether the general interest in disclosure outweighs the interest in personal privacy;
because privacy is at stake, professional citizens and legal persons cannot directly invoke this ground for refusal;
it is advisable to obtain explicit clarity from the requester when requesting personal data of their own whether there is consent.
the administrative authority shall provide information of its own accord about the policy, the preparation and implementation of the policy;
the information must be provided in comprehensible form and in such a way that it reaches the interested and interested citizens as far as possible, and at such times as to enable them to make their views known to the administrative authority in good time;
the administrative authority shall ensure that opinions issued to the administrative authority by
non-official advisory committee with a view to the policy to be formed are made public and, if necessary, explained;
within four weeks of receiving the recommendations, they shall be published and announced in the Government Gazette or a generally available periodical;
full or partial non-disclosure shall be announced in the same way;
the documents may be disclosed by including them in a generally available publication, publishing them separately and making them generally available, or by making them available for inspection, providing a copy or lending them.
consider whether mention of personal data in the public documents is necessary for fulfilling publication obligation under the Wob;
the interest of the privacy of the persons mentioned in the information should be weighed against the interest of disclosure of that information.
At the time of writing, the Open Government Amendment Act (Woo) has been submitted to the House of Representatives. This bill will replace the Wob.
The bill aims to make government more transparent and strengthen the functioning of the democratic rule of law. More generally, the introduction of the Woo (and the repeal of the Wob) marks a shift from a passive disclosure obligation for governments (by means of a so-called 'Wob request') to an active disclosure obligation for governments.
The Woo bill initially included a requirement that an administrative body maintain an electronic register, accessible to everyone, of all documents held by that administrative body. Because it was expected that this would require too much effort in terms of people and resources, it was decided to investigate this further and postpone its consideration by the Senate. This further investigation resulted in an amendment bill Woo being submitted to the House of Representatives.
The main adjustments:
the register of incoming and outgoing documents previously required for administrative bodies is dropped and replaced by a government-wide multi-year plan for improving digital information management, and a contact person to be designated within the administrative bodies who can inform citizens about the availability of government information;
administrative bodies can work in phases to expand active disclosure;
the description of documents to be actively disclosed has been clarified and tailored more closely to the implementation practice of administrative bodies.
Other changes:
Just as under the Wob, the Woo allows any person to submit a request to an administrative body or an institution, service or company working under the responsibility of an administrative body. An interest still does not need to be declared;
the weighing of interests takes place in a different way when applying Article 5.5 Woo. Not only is the interest in public access weighed against the interests listed in Articles 5.1 and 5.2 of the Woo, but also the applicant's right to the information pertaining to him or her;
the consent of the person concerned is included under the Woo directly with the ground for exception and not listed as a separate paragraph as is the case with the Wob;
the relative ground for exception is put into perspective even further if the information is older than five years. In that case, the protection of privacy is deemed no longer to be at issue, unless the administrative body motivates that it is.
This seminar will give you a bird's eye view of recent developments in the field of privacy for municipalities. Where do things often go wrong and where are challenges and opportunities? Furthermore, we will zoom in on a number of current themes. Best practices are presented by municipalities on increasing awareness and shaping privacy supervision within the organization.
We also consider the delineation of the roles of the Data Protection Officer, the Privacy Officer and the CISO. How can these roles reinforce each other? And what is the role of management within the municipality: how do you involve management and how do you permanently bring privacy to their attention?
This is a checklist from the publication Checklist Privacy AVG: privacy policies in 57 checklists
This article can also be found in the AVG file
