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Personal data is not a bar to FOI disclosure

European Court backs Bavarian Lager

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Documents containing personal data cannot be withheld under EU freedom of information laws if the disclosure of the data does not undermine the privacy of the persons named, according to a ruling by the European Court of First Instance.

The case was started by an importer of German beer, the Bavarian Lager Company, more than 14 years ago. In the 1990s it had difficulty selling to British pubs because many were tied into exclusive purchasing agreements with their brewery owners. A UK law, known as the "Guest Beer Provision", obliges breweries to allow managers of their pubs to stock one rival beer. However, the law originally stipulated that the guest beer should be a cask-conditioned beer – which excludes most beers brewed outside the UK.

Bavarian Lager complained to the European Commission in 1993, arguing that this law discriminated against imported beers. A meeting followed in 1996, attended by representatives of the commission, the UK Government and a trade association. A request by Bavarian Lager to attend was rejected.

A few months after that meeting, the UK proposed an amendment to the Guest Beer Provision, effectively opening the market to continental beers. The commission dropped its investigation.

Bavarian Lager then asked for access to certain documents under EU freedom of information rules, including the names of meeting attendees. The commission refused that request and Bavarian Lager complained to the European Ombudsman.

According to Ombudsman Jacob Söderman, reporting in 2000, Bavarian Lager suspected "improper behaviour by certain persons who, at relevant times, were amongst the UK officials and politicians responsible for the brewing industry". Söderman ruled that the commission should disclose the requested information to Bavarian Lager.

The commission disclosed to Bavarian Lager the minutes of the 1996 meeting. But the names of five persons who had attended that meeting had been blanked out. Two of them had expressly objected to disclosure of their identity and the commission had been unable to contact the other three.

Bavarian Lager asked for the full minutes, containing the names of all the participants. The commission said no.

The commission took the view that Bavarian Lager had not established either an express and legitimate purpose or any need for such disclosure, as was required, so it argued, by the regulation on the protection of personal data (22 page/234KB PDF), and that, therefore, the exception concerning the protection of private life, laid down by the regulation on public access to documents (6 page/120KB PDF), applied. It further took the view that disclosure would compromise its ability to carry out investigations.

Bavarian Lager applied to the Court of First Instance for the annulment of that decision.

The court ruled this month. It found that the list of participants in the minutes contained personal data, "since the persons who participated at that meeting can be identified in them", it wrote.

"However, the mere fact that a document contains personal data does not necessarily mean that the privacy or integrity of the persons concerned is affected, even though professional activities are not, in principle, excluded from the concept of 'private life' within the meaning of Article 8 of the [European Convention on Human Rights]," it said.

The court ruled that, in this case, disclosure of names of representatives of a collective body was not capable of actually and specifically affecting protection of the privacy and integrity of the persons concerned. The mere presence of the name of the person concerned in the list of participants at a meeting, under the heading of the body which that person represented, does not have that effect, and the protection of the privacy and integrity of the persons concerned is not compromised, it said.

The court also said that, since the exception for protection of the privacy and integrity of the persons concerned did not apply, objection by those persons could not prevent disclosure. In those circumstances, Bavarian Lager did not need to prove the need for disclosure of the names.

The Court of First Instance agreed with Bavarian Lager and annulled the commission's decision. The commission has two months in which it can appeal the ruling to the European Court of Justice.

See: The judgment.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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