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 in the possession of the Administration itself or of other Public Administrations (AAPP), in order to comply with the right to citizens not to contribute to the procedure those documents that are held by the AAPP, generally recognized by Law 39/2015, of October 1, on common administrative procedure of public administrations (LPACAP) and Law 26 /2010, of 3 August, on the legal regime and procedure of the public administrations of Catalonia.
As the Catalan Data Protection Authority (APDCAT) states in its opinion CNS56/2016 , citizens have the right not to contribute to the procedure documents that have been drawn up by any administration or that they have previously contributed. To make this right effective, it transfers to the Administration the burden of incorporating them into the file, while establishing the criteria that must be followed for the consultation or request of this documentation, which must be analyzed from from the perspective of Organic Law 15/1999, of December 13, on the protection of personal data (LOPD), which clearly indicates in article 6.1 that the processing of personal data requires the unequivocal consent of the affected , unless a Law provides otherwise.
The LPACAP presumes that there is authorization for the consultation or transfer of the data by the affected person, unless there is express opposition in the procedure or the applicable special law requires this 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.
Consequently, the AAPP can access the data necessary for the specific procedure without express consent based on the legal authorization offered by articles 28.2 and 28.3 of the LPACAP, as long as the affected person 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 mark if he opposes the consultation.
Notwithstanding the above, it will be necessary to request express consent in the case of specially protected data provided for in article 7.2 and 7.3 of the LOPD.
All this without prejudice to the need to fulfill the rest of the obligations derived from the data protection regulations, in particular:
- The principle of proportionality.
- The right of information to the affected person, that is to say, it will be necessary to inform the application forms of the consequences of not providing the required information and of the fact that it will be presumed that consent is given to be able to directly search for this information.
Article 28. Documents provided by those interested in the administrative procedure .
"2. The interested parties are not obliged to provide documents that have been drawn up by any Administration, regardless of the fact that the presentation of the aforementioned documents is mandatory or optional in the procedure in question, provided that the interested party has expressed his consent for them to be consulted or request It is presumed that the consultation or obtaining is authorized by the interested parties unless the procedure states their express opposition or the applicable special law requires express consent.
3. Administrations must not require interested parties to present original documents, unless, exceptionally, the applicable regulations establish otherwise. Also, the public administrations do not require data or documents from the interested parties that are not required by the applicable regulations or that have been provided previously by the interested party to any Administration.
For these purposes, the interested party must indicate at what time and to which administrative body he presented the aforementioned documents, and the public administrations must request them electronically through their corporate networks or by consulting the data brokerage platforms or other electronic systems enabled for the purpose. It is presumed that this consultation is authorized by the interested parties unless the procedure states their express 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 can ask the interested party again to provide them."