4.4.2 Access to personal information and records [ICCPR art 17] Condensed: Everyone has the right to ascertain whether, and if so, what personal data is stored about them, subject only to restrictions that are authorized by law and are not arbitrary. Individuals have the right to request rectification or elimination of incorrect personal data or data that have been collected, processed or retained contrary to the provisions of the law. Personal information may only be handled by persons in accordance with the law and may never be used ‘for purposes incompatible’ with human rights. Comprehensive: The right to access to personal information and records flows from the right to privacy as recognized in article 17 of the ICCPR and other human rights instruments.[1] (See *arbitrary or unlawful interference with privacy*). According to the HRC, gathering and holding of personal information on computers, databanks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law … In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public or private individuals or bodies control or may control their files.[2] The ECtHR has held that states have a positive obligation to provide ‘effective and accessible procedure’ to enable an applicant to have access to all relevant and appropriate information about a medical test the applicant participated in to help the applicant determine ‘any risk to which he had been exposed during his participation in the test’.[3] Any limitations on the right to access one’s own personal information and records should be overseen by an independent authority.[4] Individuals have the rightto request rectification or elimination of incorrect personal data or data that have been collected or processed contrary to the provisions of the law.[5] Denial of access to information concerning an adopted child’s birth and permission to obtain copies of any documents, public records or full birth certificates of the adopted child where the biological mother of the adopted child had expressly sought to keep her identity secret at the time of adoption constituted a legitimate limitation of the right to privacy and family life of the applicant.[6] Personal information may only be handled by persons in accordance with law and may never be used ‘for purposes incompatible’ with human rights.[7] The disclosure of a person’s health records including her HIV positive status in court proceedings without her consent for purposes of investigation and prosecution of crime has been held by the ECtHR not to constitute a violation of the right to privacy as her views were considered and there were procedural safeguards in place.[8] Additional references UNDP, Bureau for Development Policy ‘Democratic Governance Group, A guide to measuring the impact of right to information programmes: A practical guide’ (April 2006) Article XIX ‘Access to information: An instrumental right for empowerment’ (July 2007) Article XIX ‘Background paper on freedom of information’ (December 2007) Article XIX ‘Towards a third generation of activism for the right to freedom of information (May 2008) Toby Mendel Freedom of information: A comparative legal survey (2008) Toby Mendel The right to information in Latin America: A comparative legal survey (2009) M Nowak U.N. Covenant on civil and political rights: CCPR Commentary (2005) N Jayawickrama The judicial application of human rights law: National, regional and international jurisprudence (2002)
[1]UDHR art 12, ECHR art 8, ACHR art 11. [2] HRC General Comment 16 para 10. [3] Roche v United Kingdom application 32555/96 (ECtHR (GC) 2005) para 155. [4] Gaskin v United Kingdom, application 10454/83 (ECtHR 1989) para 49. [5] HRC General Comment 16 para 10. [6]Odièvre v France, application 42326/98 (ECtHR 2003) paras 44-49. [7] HRC General Comment 16 para 10. [8]Z v Finland, application 22009/93 (ECtHR 1997] para 101.
Condensed:
Everyone has the right to ascertain whether, and if so, what personal data is stored about them, subject only to restrictions that are authorized by law and are not arbitrary. Individuals have the right to request rectification or elimination of incorrect personal data or data that have been collected, processed or retained contrary to the provisions of the law. Personal information may only be handled by persons in accordance with the law and may never be used ‘for purposes incompatible’ with human rights.
Comprehensive:
The right to access to personal information and records flows from the right to privacy as recognized in article 17 of the ICCPR and other human rights instruments.[1] (See *arbitrary or unlawful interference with privacy*). According to the HRC,
gathering and holding of personal information on computers, databanks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law … In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public or private individuals or bodies control or may control their files.[2]
The ECtHR has held that states have a positive obligation to provide ‘effective and accessible procedure’ to enable an applicant to have access to all relevant and appropriate information about a medical test the applicant participated in to help the applicant determine ‘any risk to which he had been exposed during his participation in the test’.[3] Any limitations on the right to access one’s own personal information and records should be overseen by an independent authority.[4]
Individuals have the rightto request rectification or elimination of incorrect personal data or data that have been collected or processed contrary to the provisions of the law.[5]
Denial of access to information concerning an adopted child’s birth and permission to obtain copies of any documents, public records or full birth certificates of the adopted child where the biological mother of the adopted child had expressly sought to keep her identity secret at the time of adoption constituted a legitimate limitation of the right to privacy and family life of the applicant.[6]
Personal information may only be handled by persons in accordance with law and may never be used ‘for purposes incompatible’ with human rights.[7] The disclosure of a person’s health records including her HIV positive status in court proceedings without her consent for purposes of investigation and prosecution of crime has been held by the ECtHR not to constitute a violation of the right to privacy as her views were considered and there were procedural safeguards in place.[8]
Additional references
UNDP, Bureau for Development Policy ‘Democratic Governance Group, A guide to measuring the impact of right to information programmes: A practical guide’ (April 2006)
Article XIX ‘Access to information: An instrumental right for empowerment’ (July 2007)
Article XIX ‘Background paper on freedom of information’ (December 2007)
Article XIX ‘Towards a third generation of activism for the right to freedom of information (May 2008)
Toby Mendel Freedom of information: A comparative legal survey (2008)
Toby Mendel The right to information in Latin America: A comparative legal survey (2009)
M Nowak U.N. Covenant on civil and political rights: CCPR Commentary (2005)
N Jayawickrama The judicial application of human rights law: National, regional and international jurisprudence (2002)
[1]UDHR art 12, ECHR art 8, ACHR art 11.
[2] HRC General Comment 16 para 10.
[3] Roche v United Kingdom application 32555/96 (ECtHR (GC) 2005) para 155.
[4] Gaskin v United Kingdom, application 10454/83 (ECtHR 1989) para 49.
[5] HRC General Comment 16 para 10.
[6]Odièvre v France, application 42326/98 (ECtHR 2003) paras 44-49.
[7] HRC General Comment 16 para 10.
[8]Z v Finland, application 22009/93 (ECtHR 1997] para 101.