Information rights

1. Protection of personal data

2. Freedom of information

Definitions

• Protection of data and freedom of information: two rights, conflict

• Protection of data: protection of privacy cannot see through it (individual)

• Freedom of information: cognizability of information of public interest can see through it (state)

• Hungarian Constitution Articles 59 and 61: separate regulation but Act LXIII of 1992 together, ombudsmen together

1. Protection of personal data• Antecedents:

- protection of personality rights- 1890 Warren-Brandeis: Right to Privacy → right to be let alone

• International Covenant on Civil and Political Rights Article 17, ECHR Article 8: privacy, family, home, correspondence

• EU Charter: privacy (Article 7) + protection of personal data (Article 8)

• From 1970 act on protection of data + judicial legal development

• BVerfG 1983 decision of referendum: right to information self-determination

• Strasbourg: restriction of police interception

• Kinds of data:- personal data: relating to a specific person- particular (sensitive) data:

* racial, or national or ethnic minority origin, political opinion or party affiliation, religious or ideological belief , or membership in any interest representing organisation

* state of health, pathological addictions, sexual life or criminal personal data

- written consent or act- conditions of lawful data processing:

* conscious consent of data subject → informed consent* purpose-bound Nature → Decision

15/1991 AB personal code

• Independent data security authorities: ombudsmen control of data processing (data security record)

• Act XLVIII of 2003 matter- decisive means used by authorities in case of injustified data processing: deletion, blocking, destruction, barring – judicial way against them

• Act … of 2005:

– Differences from act on ombudsman: general right to nomination

– Data transmission into third country:

* consent of affected person

or

* act + appropriate protection

• Practice of MKAB:- Decision 2/1990 AB: recommendatory letter personal code and domicile are too much

(Concurring reasonig of L. Sólyom)- Decision 20/1990 AB: declaration of property of party leaders- Decison 15/1991AB: personal data; data

protection is not only right to protection but right to information self-determination too (active); purpose-bound Nature; prohibition of data combination „personality profile”

- Decision 29/1994 AB: two identification system of notation is not lawful for the same aim

- Decision 46/1995 AB: Bokros-policy: no prolongation of personal code

- Decison 74/1992 AB: voluntary religious belief, anonymous registration is permissible because of aim of public interest and scientific aim

- Decison 21/1993 AB: declaration of property as means used for control of non-declared income is unconstitutional

• Sectorial data protection:

- Health: (Act of 1997)

* anonymity of AIDS check-up

* drug user

* the psychiatric sick

2. Freedom of information

• Antecedents: act of 1766 on press in Sweden access to official documents

• ECHR Article 10: freedom of access to information is a part of freedom of expression

• Recommandation of Council of Europe (1979): public access to documents of government

• EU Treaty of Amsterdam: public access to documents of Parliament, Council, Committee

• Hungarian Constitution Article 61: together with freedom of expression

• Practice of MKAB:- Decision 37/1992 AB: without freedom of information

is not freedom of expression- Decision 22/1999 AB: board of media trustees

• Usage of definition in Act on data protectionany 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 (2005)

• HCLU contra AB (2005): not only number data + data public on grounds of public interest

personal data data processed by non-state (etc.) governments

Data of public interest

Personal data

Data public on grounds of

public interest

• Usage of definitions (MKAB)

for example agent past of public actors

Data of publicinterest

Personal data

• Duty of information

- on application + can be asked for it in electronic way, too (2005)

- there’re no privileges (nor press!)

- obligatory public access to public interest data (proactive) in Act on data protection for the moment not, but in special

rules already yes:

* National Civil Fund Program

* on subsidy of party foundation

* act on income tax favoured of 1 % of Tax and Financial Control Administration

* mode of operation of budget governmental regulation

* new act on legislation: plans of legislation, bills of rules of law

• Enforcing rights

- deadline of statement of public interest data: 15 days

- dismissal: within 8 days

- against it within 30 days judicial way (Municipal Court of Budapest) – burden of proof of data controller

- alternative enforcing rights: ombudsman

• Boundaries of the rights:- other right personal data, rendering identifiable (2005)- public interst:

* state secret, service secret Parlamentary Commissioner of Data Protection and Freedom of Information

* trade secret: appropriation of public funds, Glass Pockets Act, fair interest

* decision-preliminary, restriction with interior data

Decision 12/2004 AB: automatic restriction of records is not unconstitutional but default violation of constitution lack of judicial remedy

Act … of 2005: exact definitions of data which establish the decision,

term of restriction: 10 years, permission before it, shorter deadline in rules of law

• Practice of MKAB:- Decision 32/1992 AB: material of local body of representatives- Decision 34/1994 AB: Act on archieve,

annulment of right to state secret, freedom of scientific research

- Decision 60/1994 AB: examination of act on screening on legal grounds- Decision 30/1997 AB: declaration of property of MPs- government meeting- documentation of government meeting- publicity of names of agents amendment to the constitution?

Thank you for your attention!