Article 13*

Article 13 – Limitations to the right of access

Commission Proposal

1. Member States may adopt legislative measures restricting, wholly or partly, the data subject’s right of access to the extent that such partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the legitimate interests of the person concerned:

(a) to avoid obstructing official or legal inquiries, investigations or procedures;

(b) to avoid prejudicing the prevention, detection, investigation and prosecution of criminal offences or the execution of criminal penalties;

(c) to protect public security;

(d) to protect national security;

(e) to protect the rights and freedoms of others.

2. Member States may determine by law categories of data processing which may wholly or partly fall under the exemptions of paragraph 1.

3. In cases referred to in paragraphs 1 and 2, Member States shall provide that the controller informs the data subject in writing on any refusal or restriction of access, on the reasons for the refusal and on the possibilities of lodging a complaint to the supervisory authority and seeking a judicial remedy. The information on factual or legal reasons on which the decision is based may be omitted where the provision of such information would undermine a purpose under paragraph 1.

4. Member States shall ensure that the controller documents the grounds for omitting the communication of the factual or legal reasons on which the decision is based.

EDRi’s proposed amendment

1. Member States may adopt legislative measures restricting, wholly or partly, the data subject’s right of access to the extent¬†and for the period that such partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the legitimate interests of the person concerned, based on a concrete and individual examination of each specific case:

(a) to avoid obstructing official or legal inquiries, investigations or procedures;

(b) to avoid prejudicing the prevention, detection, investigation and prosecution of criminal offences or the execution of criminal penalties;

(c) to protect public security;

(d) to protect national security;

(e) to protect the rights and freedoms of others.

2.  Member States may determine by law categories of data processing which may wholly or partly fall under the exemptions of paragraph 1.

1a. Legislative measures referred to in paragraph 1 must be in compliance with the Charter of Fundamental Rights of the European Union and the Convention for the Protection of Human Rights and Fundamental Freedoms, and in line with the case law of the Court of Justice of the European Union and the European Court of Human Rights.

3. In the cases referred to in paragraphs 1 and 2, Member States shall provide that the controller informs the data subject in writing on any refusal or restriction of access, on the reasons for the refusal and on the possibilities of lodging a complaint to the supervisory authority and seeking a judicial remedy. The information on factual or legal reasons on which the decision is based may be omitted where the provision of such information would undermine a purpose under paragraph 1.

4. Member States shall ensure that the controller documents the grounds for omitting the communication of the factual or legal reasons on which the decision is based.

Justification

The possibility to restrict the right to access should be more limited. The proposed amendments introduces the additional requirements of a concrete and individual assessment when invoking the possible exceptions and also clarifies that restrictions can be limited in time. The possibility for blanket exceptions in paragraph 2 has been removed since legitimate exceptions are already covered under paragraph 1. It has been been replaced by a provision suggested by the Article 29 Working Party in its opinion (p. 29), which specifies that legislative measures restricting the right of access must be in compliance with Member States’ obligations under the Charter and the European Convention on Human Rights.

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