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“Privacy” access as a power of control

The House of Data Imperiali bulletins are excerpts from the articles of the Legal Information Service (SIG) edited by Mr. Rosario Imperiali d’Afflitto.

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“Privacy” access as a power of control

More and more, legislators, both supranational and national, are recognizing a right of access for individuals to information held by third parties that affects them in some way or that is functional to the exercise of their rights under the law.

The GDPR is no exception, giving particular relevance to the right of access within the data subject’s package of rights.

Rights of access

Rights of access can be generalized- meaning unconditional, such as public access -or subjected to specific subjective conditions, such as access to administrative documents or GDPR access. Then there are regulated accesses in specific fields, such as those to banking records or insurance policies.

Access to insurance records

Italian legislation, through the Private Insurance Code (Art. 146), provides for a right of access to (insurance) records for insurance companies that carry out insurance on civil liability for the circulation of vehicles, in favor of policyholders and injured parties, “at the conclusion of the procedures of assessment, ascertainment and liquidation of damages that concern them.” The same article distinguishes this type of access from the access to personal data regulated by the Privacy Code and, now, the GDPR.

This access to insurance records is limited to a subjective and objective scope: it can be claimed by “policyholders” and “injured parties” implying the existence of an actual and personal interest that places them in relation to the act of which ostensibility is sought, and seems to limit the scope of ostensibility to only the concluding acts of proceedings (of assessment, ascertainment and liquidated damages).

Access to banking records

The Consolidated Banking Act (Article 119.4) recognizes the right of the account holder to request documentation of his or her banking transactions from the Bank. Article 119.4 states:

“4. The customer, the one who succeeds him in any capacity, and the one who takes over the administration of his property shall have the right to obtain, at his own expense, within a reasonable period of time and in any case not later than ninety days, copies of the documentation pertaining to individual transactions carried out in the last ten years. The customer may be charged only for the cost of producing such documentation.” This right, therefore, is granted only to those who have a contractual relationship with the bank and concerns “documentation pertaining to individual transactions entered into in the last ten years.”

Access to administrative documents

Access to administrative documents was introduced by Law 241/1990 and a subsequent regulation (Presidential Decree 184/2006) to implement the provision of Article 97 of the Constitution on impartiality and smooth performance of the Public Administration. A Public Administration that does not allow citizens to know the documents that concern them is perceived as non-transparent and steeped in bureaucracy. Access to administrative documents is granted for the protection of legally relevant situations to anyone who has a direct, concrete and currently existing interest in them (Article 22, Law No. 241/1990). This interest concerns a legally protected situation linked to the document to which access is requested.

The applicant has the right to inspect and take a copy of the document; data protection legislation is not an obstacle to access to administrative documents, but the relationship between the two disciplines must be properly balanced. A response to access must be provided within 30 days of the request, failing which the request shall be deemed refused.

Public Access

Western democracies embrace the right of freedom of information, which recognizes a generalized right for everyone to request and obtain copies of documents held by public administration. In this respect, for example in Italy, the legislator introduced the civic access (Legislative Decree 33/2013) under which, in order to encourage widespread forms of control over the pursuit of institutional functions and the use of public resources and to promote participation in public debate, anyone has the right to access data and documents held by public administrations, without the need for subjective requirements or any reasons.

According to Italian law, civic access is divided into.

– “simple” referring to documents with an unfulfilled obligation to publish

– “generalized” referring to documents for which there is no obligation to publish.

A response must be issued within 30 days of the submission of the request.