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EU bodies should tell people that some personal information on them might be made public before gathering any personal data, the bodies' privacy watchdog has said. The bodies should adopt 'a presumption of openness' in certain cases, it said.

The European Data Protection Supervisor (EDPS), Peter Hustinx, has published revised guidance on how EU institutions should collect and release data if they are to balance properly the need for transparency in government with the need for personal privacy.

The guidance has been revised in the wake of a ruling last year from the European Court of Justice (ECJ) in which the ECJ went against the advice of the EDPS and said that the European Commission was right to refuse to release the names of people who attended a meeting.

EU institutions should warn people when data is collected that it might be released so that they have no basis for refusing to release it at a later date, the EDPS said. This would improve the transparency of government, the EDPS statement said.

"Whilst the fundamental right to data protection must be respected by the institutions, care should be taken that data protection is not used as a pretext for not being transparent," said Hustinx. "This is detrimental to good governance and not in the interest of data protection either. The EU administration should therefore give the right example. Our analysis has shown that a proactive approach serves all interests best."

"The EDPS recommends the EU institutions to follow a proactive approach by making clear in advance to the persons concerned which personal data may be subject to public disclosure," said the statement.

"In case of public disclosure of personal data by the EU institutions, such a proactive approach would ensure that the persons concerned are well-informed and able to invoke their data protection rights," said the statement. "It would also be beneficial to the institutions as it would reduce future administrative burdens for those responsible for the data processing and those who deal with public access requests."

Hustinx said that people dealing with EU institutions must know where they stand when it comes to the use of any information which might qualify as personal data.

"The EDPS encourages the EU administration to develop clear internal policies, creating a presumption of openness for certain personal data in specified cases," said the EDPS statement. "Such a presumption could be established, for example, for documents which contain personal data relating to a public figure acting in his or her public capacity, or data relating solely to the professional activities of the person concerned."

The case which has forced the EDPS to revise his guidance involved the director of the Bavarian Lager Company, who sought access to European Commission documents dealing with a complaint he had made about the UK allowing pubs to exclude their lager.

The Commission blanked out the names of five people who attended one of the meetings described in the documents, citing data protection concerns.

The EDPS said that this was too strict an approach and that such information should only be withheld when there is a risk of harm to those people's privacy.

The ECJ disagreed and upheld the Commission's decision.

Copyright © 2011, OUT-LAW.com

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

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