Access by applicants to the data concerning them processed in INTERPOL’s files is a challenging issue when the National Central Bureau (NCB) source restricts the communication of information connected to a request. Such restrictions can directly impact the applicant’s capacity to engage in an equitable legal defense by preventing them from presenting counter-arguments.
Since the implementation of its Statute, and as highlighted in all Commission for the Control of INTERPOL’s Files (CCF) annual reports since 2017, the question of the communication of information to the applicant and the increased restrictions requested by NCB is one of the most significant challenges faced by the CCF.
According to the CCF 2022 annual report, over 50% of cases handled by the CCF are impacted by restrictions, primarily imposed by NCB.
The general principle: communication of information
In the framework of an application from an individual to the Commission, the Statute of the Commission for the Control of INTERPOL’s Files applies. Article 35(1) of the Commission’s Statute provides: “Information connected with a request shall be accessible to the applicant and the source of the data, subject to the restrictions, conditions, and procedures set out in this article.”
Therefore, when processing a request, prior to any disclosure of information to an applicant, the Commission consults the NCB source of the data on the communication of information related to the request.
The exception: restrictions on data communication
Any restriction on the communication of information from an NCB must be motivated and justified. To comply with Articles 35(3) and 35(4) of the CCF Statute, an NCB is requested to:
- Indicate the reason(s) for its refusal to disclose any information to the applicant, among those listed in Article 35(3) of the CCF Statute:
- a) To protect public or national security or to prevent crime;
- b) To protect the confidentiality of an investigation or prosecution;
- c) To protect the rights and freedoms of the applicant or third parties.
- Justify its refusal in the specific case at hand in accordance with Article 35(4) of the Commission’s Statute, which provides: “Any restriction on the disclosure of information must be justified.”
CCF approach when facing restrictions
As a first step, the Commission usually invites the NCB to consider whether the required restriction is indeed appropriate and reasonable, as it impacts the adversarial character of the proceedings. If the restrictions are maintained, the Commission regularly reminds the NCB wishing to restrict the communication of information to the applicant of its obligation to properly motivate and justify its decisions. When restrictions are not properly motivated or justified, the Commission engages in extensive communications with the restricting party, increasing the average timeframe required to process requests.
How does the CCF assess restrictions?
The CCF carefully examines restrictions based on their justification and impact on the party concerned. Restrictions being an exception to the general principle of communication of information, which bear consequences on the rights of the parties, the CCF interprets them strictly.
As mentioned above, when an NCB restricts the communication of information, it must provide both the reasons and justification for this decision. The CCF consistently requests that these justifications be specific and directly linked to the case at hand. General justifications are deemed invalid by the CCF, as non-specific justifications do not hold weight.
When studying this issue, the Commission also considers the existence of possible counter-balancing measures to compensate for interference with the rights of the parties (such as the provision of a redacted summary or a minimum set of information), which could minimize the impact of the restrictions on the rights of the applicant.
If an NCB does not or poorly justify the restriction of information, could it lead to the disclosure of data to the applicant?
No. As per Article 35(4) of the CCF Statute, the absence of justification alone will not lead to the disclosure of the content of the information but may be taken into consideration by the Requests Chamber in assessing and deciding on a request. Accordingly, if the Commission establishes that the restrictions are not adequately justified in a case-tailored manner, and that they do not respect the principles of necessity, proportionality, and effective remedy, it does not disclose the data concerned. However, in the study of the request, the CCF takes into consideration the impact of restrictions on its ability to provide an adequate reasoned decision to the restricted party, and restrictions may impact the Commission’s decision regarding the compliance of the data concerned with rules.
At Otherside, we leverage our expertise to address the complexities linked to the right of access, aiming to prevent and mitigate potential restrictions imposed by national authorities. With our thorough understanding of INTERPOL’s rules, we strive to protect our clients’ rights against unjustified restrictions, helping them to mount an effective legal defense.
