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ACCESS TO PUBLIC INFORMATIONAND PERSONAL DATA PROTECTIONHuixquilucan (Mexico State), 4 th November 2005I. INTRODUCTIONThe right to access public information, that is, information in the possession ofpublic sector entities in modern societies, constitutes a control mechanism thatenables citizens to be aware of the actions taken by this sector and acts as avehicle through which the sector can account for such actions. In this respect,access to public information has become a fundamental component of ademocratic, transparent society.However, the necessary transparency that must prevail in government activitiesmust also be reconciled with the legal interests protected by law, such as otherfundamental human rights, particularly the fundamental right to privacy. Thisreconciliation becomes even more evident if we take into account the effects ofthe fast progress of technology on the issue of privacy.As the case in point encompasses two rights, certain conflicts may underlieparticular cases of access to information and the protection of personal data,arising from the fact that both rights cannot be exercised absolutely in all cases.The rights of all those affected must be respected, and no single right mustprevail over others, except in clear and express circumstances. The lawsgoverning access to information set out a clear, well-defined list of the mattersthat cannot be made public. Generally, there are two types of data envisaged asexceptions to access; the first usually refers to those matters limited only to theState in protection of the general public good, such as national security, damageto the national economy or international relations. In cases where governmentalinformation is reserved, the relevant authorities must prove the damage thatdiffusion of certain information will effectively cause to the legal interestsprotected by law, so that the least amount of information possible is reserved tobenefit the individual, thus facilitating assessment of governmental activities.The other type of information held by the State is related to the personal data ofboth private citizens and legal entities. In the case of individuals, their personaldata are protected by the laws of access to confidential data and by personaldata protection legislation.2
ACCESS TO PUBLIC INFORMATIONAND PERSONAL DATA PROTECTIONHuixquilucan (Mexico State), 4 th November 2005Likewise, the exercise of the right to personal data protection has its limits,although such limits must meet the following criteria: a) they are permissible tothe extent that there is a prevailing public interest; b) there is an express,precise, legal instrument that meets the requirements of the principle ofproportionality; c) the doubt in question should be interpreted in a limited manner,as it is a matter of “guaranteeing and protecting public freedoms and thefundamental rights of individuals with respect to personal data processing, and inparticular, their honour and personal and family privacy”, and d) theconsideration of whether such limits not only violate the principles of consent andpurpose established by personal data protection laws, but also the principle ofquality, which provides that only the data that is absolutely necessary should bemade available to attain the aforesaid purpose.It may be said that there is no true a priori conflict between the right toinformation and the right to personal data protection, and therefore, no priorlegal-philosophical scenario need occupy our attention. It is rather a question ofseeing that the relevant authorities, or those with jurisdictional or quasijurisdictionalpowers, resolve the issues amicably as they arise, ad casum.Furthermore, democratic societies must safeguard the protection of personaldata. The most fully developed regime for such protection is envisaged in theEuropean models, which are based primarily on Convention 108 of the EuropeanCouncil on the protection of individuals with regards to processing of personaldata issued in 1981, and Directive 95/46/EC of the European Parliament andCouncil on the Protection of Personal Data.The aforementioned legislation also establishes the rights to access, correction,cancellation and opposition as fundamental rights of all data subjects.Thus, the present study is addressed at setting out the principles that governaccess to public information on the one hand, and those regulating personal dataprotection on the other; the possible exceptions to those principles, and certaincases of conflicts of rights that may arise due to the diversity of the principles thatapply to both issues.3
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