The Information and Data Protection Commissioner replied today 21st January 2013 to a complaint which I submitted on behalf of Alternattiva Demokratika. He has questioned “the purpose of providing ………..lists of patients in hospitals, so early before the polling day when, I would say, the majority of those patients will be returning home before polling day and will not be casting their vote at the hospital.”
He consequently strongly recommended “that the Electoral Commission should require the submission of data, in terms of article 82 of the General Elections Act, not earlier than as from the Monday before polling day.”
The Information and Data Protection Commissioner was replying to a complaint submitted on the 18th December 2012 with reference to the provisions of articles 80, 81, 82, 83 and 84 of the General Elections Act amended during one of the last sittings of Parliament
The recommendation of the Data and Information Protection Commisisoner which cuts down to size the draconian provisions of the law agreed to unanimously in Parliament by the PL and the PN thereby protecting patients from the unwarranted intrusion of political parties.
(full text of correspondence follows)
Our Ref: CDP/158/2012
Mr Carmel Cacopardo
Dear Mr Cacopardo,
I refer to your message hereunder and, after investigating your submissions, would like to submit the following:
In terms of sub-article 9(c) of the Data Protection Act (Chapter 440 of the Laws of Malta), hereinafter referred to as “the Act”,
“Personal data may be processed only if :
(c) processing is necessary for compliance with a legal obligation to which the controller is subject;”
Therefore, on the basis of the above-mentioned provision, the submission by the persons responsible for the administration of retirement homes to the sub-committee, established in terms of article 81 of the General Elections Act (Chapter 354 of the Laws of Malta), and subsequently to the political parties, lists of residents and employees, as required in terms of sub-articles 82(1)(a) and (b), (2)(b), (3) and (4) of the General Elections Act, is in conformity with the above-mentioned provision of the Act.
The Act defines “sensitive personal data” as “personal data that reveals race or ethnic origin, political opinions, religious or philosophical beliefs, membership of a trade union, health, or sex life”. There is no doubt that, according to this definition, the data referred to in sub-article 82(2)(a) of the General Elections Act, constitutes “sensitive personal data” since it relates to persons’ health. The processing of “sensitive personal data” is subject to the provisions of article 12 of the Act which states that:
“ (1) Subject to the other provisions of this Act no person shall process sensitive personal data:
Provided that such personal data may be processed in those cases provided for under sub-article (2) and under articles 13 to 16 or as may be prescribed by the Minister having regard to an important public interest.”
Given that General and Local Council Elections constitute an “important public interest” the publication of Legal Notice 30 of 2013 on the Processing of Personal Data for the purpose of the General Elections Act and the Local Councils Act Regulations, 2013, provides, on the basis of article 12(1) of the Act, the legal vires for the processing of the “sensitive personal data” envisaged in terms of sub-articles 82(2)(a), (3) and (4) of the General Elections Act.
In the light of the foregoing, there are no legal impediments barring the administrators of retirement homes and hospitals from providing the sub-committee, set up in terms of article 81 of the General Elections Act, and subsequently to the political parties in terms of sub-article 82(3), with the personal data and sensitive personal data, according to article 82 of the General Elections Act.
However, in this particular instance, that is, where there is a time lapse of more than eight weeks from the publishing of the election writ to the polling day, the requirement for the Electoral Commission and the political parties to be provided with lists of persons at retirement homes and hospitals starting from three days following the publication of the writ, is seen as neither relevant nor proportionate. More so, I question the purpose of providing such lists of patients in hospitals, so early before the polling day when, I would say, the majority of those patients will be returning home before polling day and will not be casting their vote at the hospital. Therefore, taking into account the obligations of the sub-committee as set out in sub-article 77(4)(d) of the General Elections Act, I strongly recommend that the Electoral Commission should require the submission of data, in terms of article 82 of the General Elections Act, not earlier than as from the Monday before polling day.
In view of this recommendation I am copying this communication to the Chief Electoral Commissioner for onward transmission to the Electoral Commission and the sub-committee.
Information and Data Protection Commissioner
Airways House, Second Floor,
High Street, Sliema SLM 1549,
Tel: (+356) 2328 7100 Fax: (+356) 2328 7198
c.c. Mr Saviour Gauci, Chief Electoral Commissioner
From: Perit Carmel Cacopardo [mailto:email@example.com]
Sent: 18 December 2012 16:23
To: Info at IDPC
Subject: for the attention of Mr Joseph Ebejer, Information and Data Protection Commissioner
To the Information & Data Protection Commissioner
On behalf of Alternattiva Demokratika I draw your attention to the provisions of sections 80, 81, 82, 83 and 84 of the General Elections Act.
In particular I draw your attention to the provisions of article 82 which provides for information relative to residents in retirement homes and patients in hospitals to be supplied to the Electoral Commission as well as political parties on a daily basis as from date when the writ proclaiming the date of the general election is published. In the case of hospitals this information is to include wards where patients are placed.
It is the opinion of Alternattiva Demokratika that providing this data relative to retirement home residents and hospital patients to political parties would infringe the provisions of the Data Protection Act as it involves the unnecessary dissemination of personal sensitive data which is a matter restricted under the provisions of the Act.
In view of the above I request that you investigate the matter at your earliest and that should you consider it appropriate issue such directives such that the privacy of residents at retirement homes and patients at hospitals is protected in terms of the Data Protection Act.
Kindly acknowledge receipt.
Deputy Chairman – Alternattiva Demokratika