One of the issues that raises the most debate is whether it is necessary to have the consent of the interested party for the consultation of data and documents held by the same Administration or other Public Administrations (AAPP), in order to comply with the right of the citizen not to contribute to the procedure those documents that open in the possession of the AAPP, recognized in general character by the Law 39/2015, of 1 October, of common administrative procedure of the public Administrations (LPACAP) and the Law 26 / 2010, of 3 August, on the legal and procedural regime of the public administrations of Catalonia.
As stated by the Catalan Data Protection Authority (APDCAT) in its opinion CNS56 / 2016 , citizens have the right not to contribute to the procedure the documents that have been prepared by any administration or that have already been provided previously. To make this right effective, it transfers to the Administration the burden of incorporating them into the file, establishing the criteria to be followed for the consultation or request of this documentation, which must be analyzed from from the perspective of Organic Law 15/1999, of 13 December, on the protection of personal data (LOPD), which clearly states in Article 6.1 that the processing of personal data requires the unequivocal consent of the data subject , unless otherwise provided by law.
The LPACAP presumes that there is authorization for the consultation or transfer of data by the data subject, unless there is express opposition in the procedure or the applicable special law requires such express consent. Therefore, a legal authorization is established for the transfer of data between bodies of the same administration or between public administrations, under the protection of article 11.2 a) of the LOPD.
Accordingly, AAPPs may access the data necessary for the specific procedure without express consent on the basis of the legal authorization provided by Articles 28.2 and 28.3 of the LPACAP, provided that the person concerned has not expressly objected. In this case, the APDCAT considers that this opposition could be articulated through the inclusion of a box in the forms, which the citizen can tick in case of opposition to the consultation.
Notwithstanding the above, express consent must be requested in the case of specially protected data provided for in Articles 7.2 and 7.3 of the LOPD.
All this without prejudice to the need to comply with the other obligations arising from data protection regulations, in particular:
- The principle of proportionality.
- The right to information to the data subject, in other words, the application forms must be informed of the consequences of not providing the required information and of the fact that it will be presumed that consent is given in order to be able to search for this information directly.
Article 28. Documents provided by those interested in the administrative procedure .
“2. Interested parties are not obliged to provide documents prepared by any Administration, regardless of whether the presentation of the aforementioned documents is mandatory or optional in the procedure in question, provided that the interested party has expressed their consent to be consulted or request. It is presumed that the consultation or obtaining is authorized by the interested parties unless the procedure expressly states their opposition or that the applicable special law requires express consent.
3. The administrations shall not require interested parties to submit original documents, unless, exceptionally, the applicable regulations provide otherwise. Likewise, public administrations do not require interested parties to provide data or documents not required by the applicable regulations or which have previously been provided by the interested party to any Administration.
To this end, the interested party must indicate at what time and before which administrative body he submitted the aforementioned documents, and public administrations must request them electronically through their corporate networks or by consulting the data intermediation platforms or other electronic systems enabled for this purpose. It is presumed that such consultation is authorized by the interested parties unless the procedure expressly states their opposition or that the applicable special law requires express consent; in both cases, they must be informed in advance of their rights regarding the protection of personal data. Exceptionally, if the public administrations cannot obtain the aforementioned documents, they may ask the interested party to provide them again. ”