By Nikolaj Nielsen

BRUSSELS - Sweden’s ministry of justice says the EU’s draft data protection law could upset the delicate balance between transparency and privacy in its own national law on access to documents.

“With a regulation there is a need to make it perfectly clear that member states may keep their national rules on access to documents,” said David Torngren, an official at Sweden’s ministry of justice, in an email on Tuesday (19 March).

Torngren described the right of access to official documents as a cornerstone of the Swedish constitution for the past 250 years.

“[It] has proved essential to ensure public oversight of public affairs,” he noted. The EU data protection regulation is seen as one of the more complex legislative bills currently being pushed through at EU level. Nearly 3,200 amendments have been tabled at the European Parliament alone.

The draft aims to overhaul a 1995 data protection directive to provide uniform data protection laws across member states. The "right to be forgotten" and "informed consent" are among some of the changes aimed to strengthen people's privacy rights. Torngren’s concern stems from a vague one-line description of access to public documents buried near the bottom of the commission’s draft bill. The sentence notes that the regulation “allows the principle of public access to official documents to be taken into account.” But the terminology is too vague for some. Swedish socialist MEP Anna Hedh, who tabled an amendment to clarify the text, says the sentence would render it more difficult to get a hold of public documents because of tougher privacy rights set at the EU level. The Vienna-based Fundamental Rights Agency (FRA) says member states should reserve balance privacy rights and access to documents.

Such a national balance should be clearly reflected in the regulation, says FRA. “The problem is that it is not really a strong EU competence,” Mario Oetheimer, who heads FRA’s privacy and data protection freedoms and justice department, told this website on Wednesday. The European Parliament is moving towards the FRA’s position and has added a line to the bill giving public authorities the right to disclose personal data in documents in accordance to member state laws.

German Green MEP Jan Albrecht, who drafted the parliament’s report, added the clause but as part of a minor provision. Albrecht told EUobserver that he was open to the idea of expanding the text “to make sure that the access to documents is a right which is not overwritten by data protection in this regulation.” He noted that outstanding issues remain in the area of fundamental rights, including transparency and freedom of expression, and how this could affect the privacy concerns outlined in the regulation, however. “We still have some work to do on those areas,” he said. The legal complications, he pointed out, come from the regulation’s attempt to harmonise competing fundamental rights where the EU has limited competence. For its part, the commission says the regulation does not prevent the public access to documents and that it is seeking to resolve any outstanding issue with Sweden’s justice minister Beatrice Ask. "I understand that this is an issue of constitutional and cultural importance. I am prepared to work on a tailor-made provision to deal with this,” said EU justice commissioner Vivianne Reding in early March.

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