Case law: the time limit of right to access

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

C-553/07, College van burgemeester en wethouders van Rotterdam v. Rijkeboer, 7.5.2009

Reference for preliminary ruling. Dutch law on PD held by local authorities provides that on request, Board of Aldermen must notify a DS within 4 weeks whether his PD have been disclosed to a purchaser or 3rd party during the preceding year. Data held by authority include basic data (name, dob, personal id no., ssn, local authority or registration, etc.) and data on transfers. Mr. R requested to be informed of all instances where data relating to him were transferred in preceding 2 years, content and recipients.

Question referred: whether, pursuant to Article 12(a) (right of access) of Directive 95/46, a DS’s right of access to information on the recipients of PD regarding him and on the content of the data communicated may be limited to a period of one year preceding the request.

Time limit on right of access: Right of access is necessary to enable DS to exercise other rights (rectification, blocking, erasure, and notify recipients of same; object to processing or request damages). The right must of necessity relate to the past, otherwise DS would not be in a position effectively to exercise his right to have data presumed unlawful or incorrect rectified, erased or blocked or to bring legal proceedings and obtain compensation for damages. MSs have some freedom of action in implementing the Directive, but it is not unlimited. Setting of time limit on right of access must allow DS to exercise his rights. It is for MSs to fix a time limit for storage of information on the recipients and the content of data disclosed, and to provide access to that information which constitutes a fair balance between the interest of the DS in exercising his rights and the burden on the controller to store that information. In present case, limiting storage of information on recipients and content to one year, while the basic data is stored much longer, does not constitute a fair balance, unless it can be shown that longer storage would constitute an excessive burden.

Credits and acknowledgment go to Laraine Laudati, OLAF DPO.

Stay tuned for the case law.

Any questions can be submitted to: dan@e-crimeexpert.com

Additional information can be found at: www.e-crimeexppert.com

What do you think about the findings? Do you think that the applicant was right? 

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