En undersökning av den svenska offentlighetsprincipens förenlighet med EU:s dataskyddsförordning

Sammanfattning: The paper examines the compatibility between the Swedish principle of transparency and EU’s general data protection regulation (EU) 2016/679 (GDPR). The question of compatibility between the right of access to public documents in Sweden and the EU regulation regardng protection of personal data have been relevant since EU started to legislate the area. However, for the first time a general regulation regarding processing of personal data is enforced which brings the problem to a head. Focusing on the right to public documents (a part of the Swedish principle of transparency) the relevant regulations in GDPR is examined to find possible conflicts with the principle of transparency. It is found that the vast opportunities to exception from the principal rules and the possibility of national special regulation solves many of the conflicts, even though some remain. The perception of the Swedish government in regard to article 86 in GDPR, which allows the member states to reconcile the GDPR with the right to public documents, is that the Swedish principle of transparency is granted precedence over the GDPR. The opinion of the Swedish government does not stand valid regarding the textual content in the regulation nor its purpose and goals. It would have been desirable if the government had made a closer investigation regarding what exception from the principal rules to use, and what national special regulation that is necessary, for the practice of the Swedish right of access to public documents. The analysis in the paper concludes that the principle of transparency and the GDPR can possibly be compatible. Article 86 will be of importance after the of- fered exceptions in the specific rights in the GDPR have been used. The article needs to be put in relation to the protection for personal data offered in the Swedish national legislative that limits the right of access to public documents. Furthermore, the question of respect from EU concerning the national constitutional identity is examined regarding its role reconciling the union law and the Swedish principle of trans- parency. It is stated that it may be of importance for a, from a Swedish transparency perspective, beneficial interpretation of article 86 in the CJEU. The paper also investigates the question of Sweden’s transferring of competence concerning the principle of transparency. It is stated that to the extent EU does not provide a protection of the right of access to public documents equal to the law in Sweden a Swedish court could disallow the competence transfer which passed EU that legislative power.