Personal Data Protection and Safeguarding Draft Act June 2019 The Council of Europe stated in a 1986 Resolution that they are “not mutually distinct but form part of the overall information policy in society".89 The Modernised Council of Europe Convention 108 includes a specific reference to public access to information in its recitals: Considering that this Convention permits account to be taken, in the implementation of the rules laid down therein, of the principle of the right of access to official documents; The explanatory note to the revised convention states: Furthermore, the Convention confirms that the exercise of the right to data protection, which is not absolute, should notably not be used as a general means to prevent public access to official documents. The EU GDPR further extends this recognition. Article 86 states: Personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation. Many national data protection laws in Europe and around the world have a specific recognition of the right to information. In Ireland, Article 44 of the Data Protection Act 2018, implementing the GDPR states: (1) For the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to the record is granted under and in accordance with the Act of 2014 pursuant to an FOI request. (2) For the purposes of Article 86, personal data contained in environmental information may be disclosed where the information is made available under and in accordance with the Access to Information on the Environment Regulations pursuant to a request within the meaning of those Regulations. In South Africa, the Promotion of Access to Information Act requires that disclosure of information must be declined if it “would involve the unreasonable disclosure of personal information about a third party, including a deceased individual". However, the information can be disclosed if it is: about an individual who is or was an official of a public body and which relates to the position or functions of the individual, including, but not limited to: (i) the fact that the individual is or was an official of that public body; (ii) the title, work address, work phone number and other similar particulars of the individual; (iii) the classification, salary scale, or remuneration and responsibilities of the position held or services performed by the individual; and (iv) the name of the individual on a record prepared by the individual in the course of employment.90 It is important to ensure that public registers and other information relating to the operation of government or in the public interest also remain public, and are not unnecessarily restricted in the name of data protection. These records can be quite crucial to ensuring accountability, including public information procurement, public registers of company owners, information on company officials meeting with public officials to influence their decisions, recipients of subsidies, and more. Thus, it is also necessary that the Draft Act fully recognise the public interest when there is a request to access records which contain personal information of any kind about private individuals. 89 90 Council of Europe Recommendation 1037 On Data Protection and Freedom of Information (1986). Promotion of Access to Information Act, §34. ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 27 of 58