Balancing criteria between the right to access public information and the right to personal data protection: lessons from the spanish model

Abstract

This article aims to analyze the conflict between the right of access to public information and the right to protection of personal data based on the Spanish experience. The first establishes that all information maintained by public agencies is, as a rule, accessible, with secrecy being an exception. The second, on the other hand, determines that the information related to identified or identifiable persons must be protected and its treatment and transmission to third parties is only allowed with the consent of its owner or in special legal situations. Since there is no hierarchy between fundamental rights, in the case of a request for information containing personal data, the authority responsible for deciding it must assess, in the light of the circumstances of the specific case, which of the rights should be given priority. In general, the legal technique used in this assessment is called balancing of rights and consists of a test of harm and public interest. It is a matter of weighing down the public interest in transparency against the interest in protecting privacy and informational self-determination of data subjects. The article discusses the legal content of the conflicting rights and the criteria normally used to optimize them, so that neither is sacrificed beyond the measure strictly necessary for the protection of the other. In this sense, the experience of the Spanish legal system is particularly instructive, as it defines weighting criteria between the right of access and data protection already in the legislation itself, and in establishing an obligation of coordination between the institutions in charge of control, promotion and defense of both rights.