On 11 November 2014, the motion Segers/Oosenbrug on Privacy Impact Assessments was adopted by the House of Representatives [“the House”]. The motion was proposed in connection with a legislative proposal, namely 34000 VII Budget Memorandum of Interior and Kingdom Relations 2015. The House expects a so-called Privacy Impact Assessment [“PIA”] to be performed by the government when proposed legislation may have an impact on the processing of personal data. If the PIA is not performed, it will be up to the government to explain why the PIA is missing.
A PIA is a tool designed to help with setting out privacy risks in the development of new policies and relevant legislation. Questionnaires and test models are examples which can be used. The purpose behind performing a PIA is to put measures in place to reduce or eliminate privacy risks at an early stage.
A “Key Model Privacy Impact Assessment Civil Service” has been in place within the government since 2013. This model requires the government to perform a PIA while developing new legislation or policy related to the installation of large data files or the construction of new IT systems.
The model has to be taken into account and considered in the Explanatory Memorandum of the legislation concerned. The House wants to introduce an obligatory PIA for all new legislation likely to have an impact on the processing of personal data. In practice, the broadly defined motion will lead to PIAs being undertaken on a regular basis. Minister Plasterk of Interior and Kingdom Relations indicated that the motion supports government policy. He did point out that the application of the current key model will be evaluated in the summer of 2015.
The minister is not required to actually implement the adopted motion. Nevertheless, he will have to inform the House via the annual budget whether or not he has taken action in respect of the motion.
The call for a PIA by the government is in line with the proposed European privacy regulation. The new Regulation in article 33, expected to be agreed on at European level in the course of 2015, imposes an obligation to perform a PIA by companies and governments if the intended data processing “present[s] specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes.”
Currently, there are already some prior tests in place. In addition to the opinion of the Council of State, the government is required to ask the Data Protection Authority [“DPA”] for advice on proposed legislation that is fully or largely related to data processing under article 51(2) Dutch Data Protection Act.
The added value of a PIA lies in the fact that the privacy impact of new legislation is critically evaluated at an early stage of the legislative process. The broadly defined motion means, however, that more proposals may be subject to a PIA, when compared with the amount of times the DPA is requested to advise at present.
The wording of the motion is not clear on whether “new legislation” only applies to laws, orders of Councils or even ministerial regulations. One thing is obvious: the privacy aspects of laws and regulations may look forward to increasing scrutiny and developments in the near future.