Article 3 of the Dutch Public administration transparency act (WOB), states that one can request information regarding public administrative matters, including, but not limited to documents regarding public policy development. Seeing the fact that these documents often contain personal data of employees of the concerned branch of government, the question arises whether such a request can be denied based on the right of privacy of said employees.
The exemptions of article 10 WOB are divided into black-list (paragraph 1) and grey-list exemptions (paragraph 2). The blacklisted exemptions are absolute grounds for refusal, whilst the body of government that receives the WOB-request has the discretionary power to weigh whether the public interest of the publication of the requested documents outweigh the ratio of the exemption stated in the second paragraph. The question remains when governmental agencies can (partially) refuse a WOB-request to safeguard its employees’ right to privacy.
Naming and shaming
The Administrative Jurisdiction Division of the Dutch Council of State (CoS), considered in its Wachtgeld Tholen-case, that even though insight in certain public administrative document can contribute to the public debate on the matter, the implications of so-called naming and shaming of public servants must be considered when assessing a WOB-request. Subsequently, only information essential for the public debate may be published to comply with the request. Therefore, if the addition of the names of the employees concerned is not detrimental to comply with the purpose of the request, they may be blacklined prior to publication of the documents. Furthermore, in its Bureau Interne Zaken Politiekorps Gelderland-case, the CoS considered that under certain circumstances, public servants of government bodies, can be personally affected if their names are published in connection to a WOB-request. It should be noted that the data subjects in question must giver their explicit consent for publication. When dealing with such matters, one should therefore always carefully assess how the publication of personal data may (negatively) affect your colleagues.
In the aforementioned Bureau Interne Zaken Politiekorps Gelderland-case, the CoS also considered that when assessing a WOB-request, the effects on the public organization itself should be taken into consideration. In particular whether publication of the information could lead to a so-called ‘chilling effect’. In other words: will the disclosure of the document affect the behavior of employees. If employees fear that all their comments can be disclosed to the public, they might refrain from making personally sensitive comments, such as evaluations of other employees. It is thus important to realize that transparency can affect the behavior of employees significantly.
Are you aware in which activities you process names of employees? PCC supports multiple (local)government bodies in their management and administration of processing activities within the meaning of the GDPR and the online and offline protection of personal date. Do you want to know how PCC can help you to improve your organization? Don’t hesitate to contact us!
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