Home Year 2020 Personal Data in Court in the Era of GDPR

Court File in the Court Archives

Külli Vallimäe-Tuberg
Data Privacy Specialist of Estonian Courts

Introduction

According to the codes of court procedure the court keeps a file for each case, including all procedural documents and other documents related to the case in chronological order. In cases prescribed by law, other items related to the proceedings will be added to the file.[1] The case file still currently relates primarily to a bound file of paper documents. However, procedural codes, on the one hand, allow a file to be kept as wholly or partly digital[2], but also presuppose, on the other hand, that the file consists of paper documents.[3]

However, in any case, the information gathered in court proceedings is no longer available only in a paper file. In addition to the file, procedural documents received and sent are registered in the courts information system.[4]

The courts information system is defined in § 34 (1) of the Courts Act as a state agency database founded by the Minister of Justice the purpose of which is the organisation of the work of courts, collection of statistics, collection and systematisation of court decisions and making these available to courts and the public. At the same time the courts information system is a place where a digital file is formed of the registered documents and where the data of digital file is stored. [5]

Although a digital version of the file is already available in cases, the paper file is generally considered to be a priority until the obligation to switch to a digital file arises. It has also been found in the judicial practice that the regulation of a file obliges the court to keep a paper file and failure to comply with this obligation can be considered a violation of a procedural provision. [6] At present, it is largely the practice for paper documents submitted to the court to be scanned for transmission to the courts information system and for electronic documents to be printed out for binding in a paper file. A paper file is not only created in court proceedings where keeping a digital file is mandatory. [7] Such cases account for about 30% of all cases. [8]

The premature abandonment of a paper file is not welcomed for reasons other than those mentioned above, including the minor ease of use of the digital file and technical problems that may make it difficult to keep a proper file. [9] The Estonian Association of Judges has pointed out several concerns regarding the intention to switch to a fully digital file, including the following problem which deserves separate and more thorough treatment. Namely, the obligation to keep a court file lies with the court. However, the courts do not have control over the data in the courts information system (incl. their integrity, preservation and access). Such control is currently in the executive branch – the controller of the courts information system is the Ministry of Justice and technically the operation of the information system is ensured by the Centre of Registers and Information Systems. When replacing a paper file with a digital file, the case file is no longer located in the court, but in the server managed by a government agency. Therefore, in the opinion of the Estonian Association of Judges, the responsibilities and risks related to the keeping of the file should also be thoroughly considered from the point of view of separation of powers and proper administration of justice.[10] In addition to keeping the file, the courts are obliged to archive the file at the end of the proceedings which adds questions about the archiving of the digital file.

The author does not pursue to provide a thorough discussion of the organization of archiving of court files in the following article. The main focus of the article is on the issues of personal data protection associated with the archiving of files. In particular, the author is interested in whether the processing of personal data contained in the files after the end of the court proceedings is comprehensible and predictable for the data subjects. Among other things, it should be possible to answer the following questions: how long personal data will be retained by a court decision that has entered into force after the end of the court proceedings and for what purpose the continued processing of personal data is justified; who archives the digital file and where it is stored; what happens to the personal data collected in the course of proceedings and stored in the courts information system after the expiry of the file retention period and the destruction of the paper file.

File archiving in court

The Codes of Civil and Administrative Court Procedure stipulate that the file will be archived with the decision which has entered into force after the end of the proceedings in the county or administrative court which has processed the matter accordingly.[11] More specifically, the storage and destruction of files and documents in the court archives is regulated by the Internal Rules of the Court Office.[12] According to the Internal Rules of the Court Office, after the entry into force of the decision, paper files are transferred to the court archives on the basis of the transfer list. The files are generally kept there until the expiry of the retention period, after which these are destroyed.[13] The court files of criminal and misdemeanour proceedings shall be preserved in the archives of the county court in the same manner as files of civil and administrative courts pursuant to the Internal Rules of the Court Office.[14]

The general principles and rules for archiving files and documents derive from the Archives Act (ArhS) and the archival rules established on the basis thereof.[15] In addition to the aforementioned legislation, court archivists base their work on the appraisal decisions[16] and instructions[17] of the National Archives and the job descriptions of court archivists.

An institution or person performing public functions should ensure the preservation and usability of the documents or archival records[18] created or received in the course of the performance of public functions within the term provided by law or legislation established on the basis thereof or until handed over to the National Archives.[19] The National Archives identifies an institution or person performing a public function, in the course of which activities archival records may be created based on thereby on the importance of the institution or person in the society and substance of the public task. Prior to the identification of the archival records, the aforementioned institution or person shall not destroy its documents.[20]

An institution in the course of the activities of which archival records may be created is an archivist within the meaning of § 2 (1) 3) of the Archival Rules, as the National Archives has also defined the courts.[21] According to the opinion of the National Archives, the activities of courts create documents that provide and supplement knowledge and understanding of the individuals, human communities and society, are unique and have great research potential.[22] As the creators of archives the courts should ensure the conditions prescribed for the creation, arrangement and preservation of archival records in order to guarantee the longest possible preservation and service life of records.[23] All documents, including the information included in the databases, regardless of the medium, should be considered as one whole, i.e. as a part of the archive.[24]

The archival records are kept up to the end of the retention period or until these are transferred to the public archives by series resulting from the classification scheme of archival records.[25] The documents should be retrievable and accessible during the retention period or until these are handed over to the public archives.[26]

It is not currently clear for the courts how the digital file is to be archived. The requirement of procedural codes to archive a file in court presupposes the existence of a paper file and does not adapt well to the specifics of a digital file. Along with the requirement arising from the procedural codes to keep files in the court archives, it is clear from § 27 (4) of the Internal Rules of the Court Office that the data in digital files are stored in courts information system and e-file at least according to the court file retention periods. It is still unclear whether and how the digital file will become a part of the court archives. The Internal Rules of the Court Office[27] establish the file retention periods and requirements for archiving a paper file, but the procedure for archiving a digital file has not been clearly regulated.

File retention and protection of personal data

§ 58 (2) of TsMS, which also applies to the administrative case file pursuant to § 87 (1) of HKMS, prescribes that the file and the procedural documents contained therein will be preserved only for as long as it is necessary in the interests of participants to the proceeding or other persons or in the public interest.

In view of the fact that the court files include, inter alia, a large amount of personal data, their retention should also take the principles governing the processing of personal data into account and ensure that personal data are not retained longer than it is appropriate and necessary.

One of the principles of the processing of personal data is the principle of purpose limitation or purposefulness. According to this personal data are collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes.[28] The further processing of personal data for archiving, scientific or historical research or statistical purposes in the public interest shall not be considered incompatible with the original purposes. [29]

The principle of the restriction on the retention of personal data is closely linked to the above principle, according to which personal data will be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed.[30] Personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to implementation of the appropriate technical and organisational measures in order to safeguard the rights and freedoms of the data subject.[31] The special categories of personal data can be processed for archiving purposes in the public interest, based on the Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.[32]

There should be no doubt that personal data have been collected in court files for the purpose of the administration of justice. The purpose of justice also allows courts to process special categories of personal data.[33] However, it is not quite clear what is the purpose of the processing of personal data after the end of the court proceedings. According to the author, the conceivable goals are, above all, either archiving in the public interest or the continued performance of the task of justice.

Recital 158 of GDPR refers to the understanding of archiving in the public interest, stating that “public authorities or public or private bodies that hold records of public interest should be services which, pursuant to the Union or Member State law, have a legal obligation to acquire, preserve, appraise, arrange, describe, communicate, promote, disseminate and provide access to records of enduring value for general public interest”. It follows from the foregoing that archiving in the public interest presupposes, inter alia, an assessment of the existence of a general public interest in the data retained and the attribution of enduring value to that data. These tasks are primarily performed by the National Archives.[34] However, this does not necessarily mean that archiving tasks in the public interest could not be shared between different authorities or bodies.

Based on the article 89 (3) of GDPR, § 7 (1) of IKS allows, if personal data are processed in the public interest for archiving purposes, to derogate from data subjects’ right to access data, right to rectify and delete data, restriction of personal data processing and right to object, likely to make it impossible or significantly impede the attainment of the objective of archiving in the public interest. Pursuant to subsection 2 of the same section the rights of data subjects may be restricted in order not to endanger the condition, authenticity, reliability, integrity and usability of the records. Thus, the Estonian legislator has also considered the application of the exception for the purpose of archiving to be justified only for the protection of archival records, which according to the Archives Act are permanently preserved.[35] It should hereby not be forgotten that the restriction of these rights is related, in accordance with Article 89 (3) of the GDPR, to the requirement laid down in Article 89 (1) to apply appropriate safeguards to protect the rights and freedoms of the data subject. In particular, the principle of minimizing data collection should be ensured. The measures may include pseudonymisation[36], if the objectives can be achieved in this way. However, if the purposes can be achieved by further processing which does not enable the identification of data subjects, those purposes will be fulfilled in that way.[37]

As archival records are created in the course of the court’s activities, the court’s archives keep, inter alia, the files including personal data, which are intended for permanent preservation. In 2012 the National Archives made an appraisal decision to specify the information of archival value from the information created and received in the performance of the management and main functions of courts of first and second instance since the restoration of independence of the Republic of Estonia.[38] The court files declared to be of archival value by the appraisal decision of the National Archives should be given over to the National Archives if these are no longer needed for the performance of their duties, but not later than ten years after the creation or receipt of the archival record and unless provided otherwise by law.[39] However, it is possible to request an extension of this term and in justified cases the state archivist may extend the term for the transfer of records. [40] Thus, the time and need to keep the files declared to be of archival value in the court archives is related to the performance of the court’s tasks, which are probably not archiving in the public interest.

It may be necessary to keep court files in the court archives in the interests of the court, participants to the proceedings and other persons. The retention of files in court, for example, requires the procedure provided for in the Codes of Civil Procedure and Administrative Court Procedure for access to files in court even after a court decision that has entered into force after the end of the proceedings.[41] It is still debatable whether the court acts in a judicial or administrative capacity by preserving the files of closed cases and granting access to them.[42] The substantive difference in defining these tasks should not be based solely on whether or not the procedure for access to the file is included in the procedural code. At the same time the need to keep the files for a specified period for a possible review procedure indicates more clearly the continuation of the purpose of the administration of justice with the court decision that entered into force after the end of the court proceedings.[43]

In order to ensure that the data which are not processed in the public interests for archiving purpose are not kept longer than necessary, a period of time should be specified for the retention of personal data, as indicated in GDPR.[44] If the rights of the data subject and obligations of the processor are restricted under Article 23 (1)f) of GDPR to protect the independence of the judiciary and judicial proceedings, this will be done by legislative measure[45] which shall include, inter alia, the retention periods for personal data and safeguards to be applied, taking into account the nature, extent and purpose of the processing or categories thereof. IKS also requires that a fixed term should be established for the retention of personal data by law or regulation.[46] Upon expiry of the retention period, the personal data should be permanently destroyed or made anonymous in such a way that the data subject can no longer be identified. [47]

The terms of retention of court files arise from § 33 (1) and (2) of the Internal Rules of the Court Office and Annex 9 to the Internal Rules. The chairman of the court hearing the case has also the right to change the retention period of the file based on the needs of the court and the uniqueness of the document. [48] The Supreme Court has emphasized that the retention of a court file (either digitally or on paper) should be ensured at least as long as it is possible to submit a petition for review pursuant to the second sentence of § 704 (3) of TsMS. This is especially the case in matters rendered in absentia where the other party has not participated in the proceedings. The Supreme Court should be able to verify the existence of the grounds for review provided for in § 702 (2) 2) of TsMS”.[49] It can be seen from the explanatory memorandum of the draft Internal Rules of the Court Office that the term for submission of a petition for review[50] provided for in § 704 (3) of TsMS has been taken into account when determining the retention period and, as a general principle, the retention period for files is ten years, unless otherwise specified in Annex 9.[51]

Annex 9 to the Internal Rules sets out the retention periods for the files by sector and, depending on the content of the case, explains the differences in the accounting of file retention terms. It turns out that in case of a criminal matter the period of punishment calculated from the entry into force of the court decision will be added to the period of retention of the file. In case of a civil judgment rendered in absentia, two years will be added to the normal retention period. The retention period of the court file in the cases which have not been accepted in procedure or were dismissed is one year.[52] The final judgments made in court cases are kept permanently.[53]

According to the explanatory memorandum of the draft Internal Rules of the Court Office, the retention periods for files apply equally to paper and digital files.[54] However, the Internal Rules of the Court Office stipulate that the data in the digital file are stored at least in accordance with the retention periods for court files.[55] Thus, it is possible to keep the digital file longer. The explanatory memorandum to the draft Internal Rules of the Court Office clarifies that since the procedure for the destruction of digital documents is still being developed, digital documents will still be available in court after the expiry of the retention period.[56]

The National Archives has assessed the courts information system as a database of archival value[57], which means that the data of the courts information system is transferred to the National Archives in its entirety.[58] The National Archives takes over the data of the database as of the agreed time, making an extract from the database.[59] The materials found on the website of the National Archives indicate that the frequency of extracting data from the database is determined after the first data transfer. The agency may destroy unnecessary data only after receiving the act of acceptance of the database or upon agreement with the National Archives.[60] To the author’s knowledge, at the time of writing an article the National Archives has not yet taken over the data of the courts information system and therefore the data may not be destroyed without the permission of the National Archives, despite the expiry of their retention period.

Thus, the obstacle to the destruction of digital files is not only the lack of a procedure or technological solution that allows it, but also the requirement to preserve the data of the courts information system as the database recognized as archival record. The current situation is unsatisfactory in several respects from the point of view of personal data protection. On the one hand, the retention periods for digital files lose clarity. It is currently not foreseeable for courts or data subjects how long personal data will be stored in the courts information system. On the other hand, it is necessary to determine the purpose for which the storage of personal data in the courts information system after the expiry of the retention period is justified. If this is archiving in the public interest, the retention periods lose their meaning. However, the question arises as to the technical and organizational safeguards that should be applied to protect the rights and freedoms of data subjects in case of archiving in the public interest, in particular to ensure that as little data as possible is collected. The personal data is stored in the courts information system even after the expiry of the retention period in a form that identifies data subjects, and currently the circle of persons who have access to the data of the courts information system is not restricted in any way due to the expiry of the retention period.

Hereby it should be referred to another important principle of the processing of personal data, which is that the processing should be lawful, fair and transparent to data subjects.[61] As the current regulation does not provide clarity regarding the procedure and terms of retention of personal data included in digital files, the regulation of retention periods of digital files should be thoroughly considered and worded in such a way that the data retention procedures and periods are also clear to the data subjects.

Destruction of the file

The documents and files that have expired will be separated for destruction and destroyed in accordance with the archival rules. The documents stored digitally and other data registered in the information system of the case, the retention period of which has expired, will be destroyed by deletion. The destruction of documents and files will be organized by the director of court pursuant to the procedure provided for in the Archives Act and Archival Rules.[62] The explanatory memorandum of to the draft Internal Rules of the Court Office specifies that the technical procedure for the destruction of digitally stored documents will be developed by the Centre of Registers and Information Systems.[63]

As indicated above, the digital files are not yet destroyed and these will be stored in the courts information system even after the expiry of the retention period for the files. § 33 (4) of the Internal Rules of the Court Office stipulates that the files and documents will not be issued after the expiry of the retention period. According to the explanatory memorandum to the draft Internal Rules of the Court Office the purpose of the provision is to ensure that digital documents are not issued after the expiry of the retention period, despite the fact that the court has these.[64] However, it should be borne in mind that the data subject has in general the right of access to his or her personal data and this right cannot be restricted, if the data are available, on the sole ground that they have expired.[65]

Access to the file after the end of the proceeding

The tasks of the court while keeping the file in the court archives also involve deciding on the access to the file. The procedure for inspecting the file with a court decision that has entered into force after the end of the proceedings has been generally regulated in the procedural codes, [66] except in criminal matters. In its ruling of 16 April 2020 in case no. 1-19-8262, the Criminal Chamber of the Supreme Court took the position that in the absence of special regulations, Personal Data Protection Act, Public Information Act or Archives Act should be applied when deciding on access to the file of a criminal case that has ended with an effective court decision, depending on the basis of the request of the person wishing to inspect the file.[67] The Supreme Court also noted, by referring to its previous practice, that in adjudicating an application for access to the file on the basis of these acts, the court acts as a judicial administrative body by performing a material administrative function and not a judicial function. Thus, upon the receipt of an application for access to a court file, the county court should conduct an administrative procedure, by verifying whether the applicant has the right to inspect the file in whole or in part.[68]

The Supreme Court also drew attention to the earlier statement in the same decision that “in the interests of legal clarity, the procedure for inspecting criminal and court files, including access to files after termination of criminal proceedings and archiving of files, could be exhaustively regulated in the Code of Criminal Procedure. This is similar to the Code of Administrative Court Procedure and Civil Procedure which establish a procedure for access to the file, which is considered to be a special regulation with respect to the Public Information Act and Personal Data Protection Act ”.[69]

§ 2 (1) of IKS stipulates that IKS and GDPR apply to offence proceedings and judicial proceedings with the specifications provided by procedural law.[70] As provided in the explanatory memorandum to the draft IKS, § 2 (1) of IKS refers to the performance of the judicial function of courts. [71] The Data Protection Inspectorate cannot supervise the data processing activities covered by judicial activities.[72]

In order to assess the admissibility of the processing of personal data collected in criminal proceedings, chapter 4 of IKS should be followed which, with the exceptions provided for in the procedural codes, also applies to criminal courts. § 16 of IKS provides the bases when personal data may be processed for purposes different from initial ones. It follows from subsections (1) and (2) of this section that the processing of personal data for purposes other than the prevention, detection and processing of an offense and the execution of a sentence is possible only if such processing is permitted by law or European Union legislation and such processing of personal data is necessary according to law or European Union legislation and is proportionate to the aim set. According to Recital 16 of the Directive 2016/680 this directive does not restrict the application of the principle that handles the public access to official documents by referring to GDPR, which allows the disclosure of personal data included in the official documents for the performance of a task carried out in the public interest in accordance with the Union law or the law of the Member State in order to reconcile public access to such official documents with the right to the protection of personal data under GDPR.[73] As the Code of Criminal Procedure does not include a special procedure for granting access to the materials of a court file after the end of criminal proceedings, the decision to grant access to a person outside the proceedings may therefore be considered on the basis of the Public Information Act (AvTS).

When deciding on access to the file on the basis of AvTS, the court should also take into account the grounds for imposing a restriction on access to information. § 4 (3) of AvTS provides as one of the general principles that upon granting access to information the inviolability of the private life of persons and protection of copyright shall be ensured. Access should be restricted, inter alia, to the information including special categories of personal data (§ 35 (1) 11) of AvTS and to information containing other personal data if enabling access to such information would significantly breach the inviolability of private life of the data subject (article 12). § 38 (2) of AvTS requires that the information holder would ensure access to only the part of the information to which restrictions on access do not apply.

Pursuant to § 35 (1) 1) of AvTS the holder of information is required to classify the information collected in criminal or misdemeanour proceedings, except for the information subject to disclosure under the conditions provided by the Code of Misdemeanour Procedure and the Code of Criminal Procedure as information intended for internal use. The Data Protection Inspectorate has taken the position that this basis applies until the end of the proceedings, after which the code of procedure and § 35 (1) 1) of AvTS no longer apply, but other access restrictions remain in force.[74] However, the Criminal Chamber of the Supreme Court, unlike the Data Protection Inspectorate, found in the above-mentioned decision that this basis also restricts access to the materials of the court file of a completed criminal case. Although the court does not have a basis provided for in KrMS for disclosing information collected in criminal proceedings in this way, the Supreme Court considered it possible that the chairman of the court[75] considered granting access to such information and further explained that if the personal data contained in the file are to be processed for journalistic purposes, the chairman of the court should be guided, inter alia, by the principles provided for in § 4 of IKS.[76] According to the Supreme Court the fact that a criminal matter was heard at the closed session cannot be an obstacle at the end of the criminal proceedings.[77]

Probably one of the most important rights, often in conflict with the right to protection of personal data, is freedom of expression and information.[78] In order to protect this right, Article 85 (2) of GDPR allows Member States to provide for exemptions and derogations where they are necessary to reconcile the right to the protection of personal data with freedom of expression and information. § 4 of the IKS stipulates the special grounds for the processing of personal data for journalistic purposes that allows to process personal data for that purpose without the consent of the data subject, if there is public interest therefor and this is in accordance with the principles of journalism ethics. The disclosure of personal data must not cause excessive damage to the rights of any data subjects. In addition, the disclosure of personal data must not unduly prejudice the rights of the data subject. Although the determination of these conditions is primarily the responsibility of the person wishing to process personal data for journalistic purposes, in the opinion of the author this does not mean that the court does not have to assess in the receipt of the request for inspection of the file whether there is a public interest in the file or, if there is such an interest, to consider the extent to which the journalist should be allowed access to the file.[79]

At the end of 2020 the Ministry of Justice forwarded its intention to develop a draft act amending the codes of judicial procedure which reflects various solutions for amending the codes of procedure in view of the greater publicity of court proceedings. Among other things, it is also planned to regulate the procedure for introducing the court files of criminal proceedings in the Code of Criminal Procedure.[80] In the interests of greater legal clarity and in view of the need to take account of the specific nature of criminal proceedings, special rules on access to the file are undoubtedly necessary. A clear legal basis is important both for the courts to decide on the access to the file and for ensuring the predictability of the processing of their data for the data subjects. In the opinion of the author the possibility regulated in the code of procedure to resolve the disputes concerning the access to court files in the same proceedings cannot be thereby considered insignificant. The disputes concerning the access to court files of completed criminal proceedings have to be currently settled in an administrative court. At this point one may ask whether in a situation where the procedure for access to the file is not regulated by the code of procedure and deciding on access to a court file is the performance of an administrative task, the Data Protection Inspectorate is competent to supervise such activities of the court.

Obviously, an access to files is increasingly taking place digitally and the intention to develop the above-mentioned draft act amending the codes of judicial procedure therefore also handles the possibilities of resolving the procedure for accessing digital files. The parties to the proceedings have currently access to the digital file via a public e-file. If a person wishing to inspect a digital file cannot use a public e-file (thus also non-procedural persons), the following solutions are possible: 1) a paper extract of the file is issued to the person at his or her request, 2) he or she is granted access electronically in the court office or 3) an electronic extract of the file is forwarded to the person’s e-mail address.[81]

The procedure for access to the file provided for in the codes of judicial procedure is probably valid until the expiry of the retention period of the file or, in case of archival records, up to the transfer to the public archive. The access to archival records given to the pubic archive is regulated by § 10 (1) of the Archives Act which stipulates that access to archival records preserved in the National Archives is unrestricted, unless restrictions established by General Data Protection Regulation, Public Information Act, Personal Data Protection Act, State Secrets and Classified Information of Foreign States Act or another Act extend thereto.[82] It is unlikely that the legislator’s wish has been to place the procedure for inspecting court files in the procedural codes under the “restrictions established by other law”. Maintaining and complying with such a procedure indefinitely would also be incompatible with the idea of archiving in the public interest.

Summary

The court file is entering the digital era by leaving behind the paper era. Given the general development of information technology, this is probably an inevitable direction by involving undoubtedly significant benefits, but also presenting new challenges for the protection of personal data. It should be agreed that this transition will not go smoothly, without difficulties of adjustment or mistakes. The benefits of a digital file are accompanied by, among other things, questions about the procedure for archiving such a file and the retention period. Given the amount and nature of personal data included in the procedural documents, legal clarity on these issues is essential. The processing of personal data by courts in and after legal proceedings, as well as the possibilities for protecting the rights of data subjects, should also be adequately clear and predictable for the data subjects.

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[1] § 56 (1) of the Code of Civil Procedure (TsMS), § 87 (1) of the Code of Administrative Court Procedure (HKMS), § 160¹ (2) of the Code of Criminal Procedure (KrMS), § 50²(2) of the Code of Misdemeanour Procedure (VTMS).

[2] § 57 (1) of TsMS, § 87 (1) of HKMS, § 160¹ (2) of KrMS, § 50² (3) of VTMS.

[3] In addition to the fact that it may be difficult to imagine adding other objects (incl. physical evidence) to the file without a physical file, the procedural codes stipulate that the file is considered a set of written documents (§ 56 (2) of TsMS, § 87 (1) of HKMS, § 160¹(3) of KrMS, § 50² (3) of VTMS). The procedural codes also contain provisions as a result of which the file moves between different instances of courts (§636 and 675 of TsMS, § 186, § 216, § 219 (8), § 244 (2) of HKMS, § 320 (1), § 343¹ (3), § 348 (1), § 370 (3) of KrMS, § 159 of VTMS).

[4] § 8² (1) of the Courts Act. Pursuant to § 9 (2) and (3) and § 13 (1) 1) of Regulation no. 5 of the Minister of Justice of 15 February 2006 “Statutes of courts information system” (statutes of courts information system), procedural documents are registered in the courts information system and also stored there.

Pursuant to § 19 (5) of Regulation no. 7 of the Minister of Justice of 8 February 2018 “Internal rules of the office of the county, administrative and circuit court” (internal rules of the court office), paper documents are scanned and registered in the relevant information system pursuant to the requirements provided for in § 57 (2) of TsMS (according to § 87 (1) of HKMS also applies to administrative matters) and § 160¹ (5) of KrMS. The document does not need to be scanned in a machine-readable form if the original poor quality of the document submitted to the court makes it impossible to meet this requirement. However, § 160¹ (5) of KrMS obliges to scan paper documents and save them in the e-file system only if the court file is kept digitally.

[5] Pursuant to § 27 (2) of the Internal Rules of the Court Office, the digital file consists of the documents registered in the court information system and other data registered in the courts information system concerning the case. Paragraph 4 of the same section stipulates that the data of a digital file shall be stored in the courts information system and in the e-file. The courts information system is interfaced with the e-file system via the data exchange layer X-Road. (§ 4 of the statutes of the courts information system, § 3 (4) 1) of Government of the Republic Regulation no. 111 of 3 July 2008 “Establishment of the e-file system and statutes for the maintenance of the e-file system”).

[6] E.g. The ruling of Tallinn Circuit Court of 6 May 2020 in the civil matter no. 2-19-18464, article 15. Not published in the Riigi Teataja.

[7] § 27 (1) of the Internal Rules of the Court Office. The procedural codes give the Minister of Justice the competence to establish the time and procedure for the transition to mandatory digital file maintenance (§ 61 of TsMS, § 87 (1) of HKMS, § 160¹ (6) of KrMS, § 50² (3) of VTMS).

[8] Intention to develop the Draft Act on Amendment to the Code of Civil Procedure (digital court file), p. 2. Online: https://adr.rik.ee/jm/dokument/7420901 (19 April 2021).

[9] See, for example, the ruling of Tallinn Circuit Court of 27 August 2020 in civil matter no. 2-19-18552, article 12. See also the opinions on the draft act on amendment to the Internal Rules of the Court Office, providing for a mandatory digital switchover in all administrative and civil matters from 1 January 2020. Online: https://adr.rik.ee/jm/dokument/5851120 (19 April 2021).

[10] Opinion of the Estonian Association of Judges of 24 August 2020 on the intention to develop an amendment to the Code of Civil Procedure (digital court file). Online: https://adr.rik.ee/jm/dokument/7474546 (19 April 2021).

[11] § 58 (1) of TsMS, § 87 (4) of HKMS.

[12] Section 7 of the Internal Rules of the Court Office. The competence of the Minister of Justice to establish the procedure for archiving files by a regulation arises from § 61 of TsMS, which also applies to file of administrative matter on the basis of § 87 (1) of HKMS.

[13] § 34 (5) and § 36 (1) of the Internal Rules of the Court Office.

[14] § 209 of KrMS refers only to the archiving of a criminal file and provides a provision delegating authority for the Government of the Republic to establish the procedure for archiving a criminal file and terms for preservation of the file. Pursuant to § 1 of Government of the Republic Regulation no. 261 of 30 July 2004 “Procedure for archiving the criminal file and terms of preservation” issued on the basis of § 209 (2) of KrMS, the regulation establishes the procedure for archiving of criminal files and materials removed from the file on the basis of § 223 (2) of the Code of Criminal Procedure and terms for preservation. § 3 of the same regulation provides that a criminal file within the meaning of this regulation is a criminal case file completed on the bases provided for in § 200–205 of the Code of Criminal Procedure and the materials of a criminal file of genreral proceeding that are not included in the court file. The regulation regulates, inter alia, the cases when a criminal file is archived in an investigative body, prosecutor’s office or county court.

[15] § 13 of ArhS; Regulation no 181 of the Government of the Republic of 22 December 2011 “Archival Rules“.

[16] § 2 (2), § 7 (1) and (2) of ArhS, chapter 4 of the Archival Rules.

[17] Pursuant to § 6 (4) of ArhS, the National Archives may provide guidelines for the management of records and archival records to agencies and persons performing public duties in order to comply with this Act and legislation established on the basis thereof.

[18] Archival records are records to which archival value has been granted by a public archives as the result of an appraisal. Archival records as the part of the national cultural heritage shall be transferred to the National Archives and these are preserved permanently (§ 2 (2) – (4) of the Archives Act).

[19] § 6 (1) of ArhS.

[20] § 7 (1) and (3) of ArhS.

[21] Appraisal decision no. 548 of the National Archives of 30 December 2011, article 3.1.2, p. 14. Online: https://www.ra.ee/wp-content/uploads/2016/11/ArhS_7lg1_OTSUS_nr_548_-_30_12_11.pdf (19.04.2021).

[22] Same, article 2.2.1.2, p.5.

[23] § 5 (1) of the Archival Rules.

[24] Same, § 3 (3).

[25]One of the basic documents of the institution’s document management is the document classification scheme. The classification scheme provides a framework for capturing and managing the records and creating an archive. On the basis of the classification scheme, the institution determines the retention period for documents, stores the documents until these are destroyed or transferred to the archives, determines access conditions, etc. (§ 6-7 of the Archival Rules, § 32 of the Internal Rules of the Court Office).

[26] § 4 (1) of the Archives Rules.

[27] § 61 of TsMS, which also applies to administrative case file on the basis of § 87 (1) of HKMS, authorizes the Minister of Justice to establish by regulation the time and procedure for transition to mandatory digital file management, technical requirements for digital file management and access, as well as electronic document storage, the term for preservation of the file and procedural documents, inspection of the archived file and procedural documents and destruction of the file. § 160¹ (7) of KrMS authorizes the Minister of Justice to establish more specific requirements for archiving a digital court file and inspecting an archived file in criminal proceedings, which also applies to a misdemeanor case file on the basis of § 50² (3) of VTMS.

[28] Article 5 (1) (b) of Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, GDPR); § 14 (2) of the Personal Data Protection Act (IKS) (the provisions of Chapter 4 of IKS transpose the Directive (EU) 2016/680 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data by the competent authorities for the prevention, investigation, detection and prosecution of criminal offenses and the execution of criminal penalties, free movement of such data and repealing Council Framework Decision 2008/977/JHA into Estonian law).

[29] Article 5 (1) b) of GDPR, recital 50.

[30] Article 5 (1) e) of GDPR, § 14 (5) of IKS.

[31] Article 5 (1) e) of GDPR, see also Article 89 (1) and recital 156 on appropriate safeguards. The permissibility of the processing of personal data for archiving purposes in the public interest is also apparent in Article 4 (3) and Article 9 (2) of Directive 2016/680, recital 26.

[32] Article 9 (2) j) of GDPR should also be permissible on the basis of § 20 (1) 1) and (2) of IKS.

[33] Article 9 (2) f) of GDPR; § 20 (1) 1) of IKS, § 15² (1) of KrMS.

[34] Pursuant to § 3 (1) and (2) of ArhS the main function of the National Archives is to appraise records created or received in the course of performance of public duties by agencies or persons, acquire and preserve archival records, grant access to archival records and organise the use thereof. The National Archives collects private documents of cultural and historical value in agreement with the owner and, if possible, if there is a public interest in doing so.

[35] § 2 (3) of ArhS.

[36] According to Article 4 (5) of GDPR ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organizational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.

[37] Article 89 (1) of GDPR. The Article 14 (5) (b) of GDPR also allows to derogate from the data subject’s right to information under Articles 1 to 4 when processing personal data for public archiving purposes, provided that the conditions referred to in Article 89 (1) are met and safeguards established, or to the extent that this obligation makes the achievement of the purpose impossible or significantly disruptive to achieve the objective. In this case, the information should be made publicly available.

[38] The appraisal decision no. 128 of the National Archives of 26 November 2012 “Appraisal of the documents of the management and main functions of the courts of first and second instance for determining the archival value”. Online: https://www.ra.ee/wp-content/uploads/2016/11/HO_I_ja_II_astme_kohtud_26.11.2012_nr_128.pdf (19 April 2021).

[39] § 8 (1) of ArhS; § 37 of the Internal Rules of the Court Office; § 15 (3) of the Archival Rules It is clear from § 17 of the ArhS and § 38 of the Archival Rules that the paper records established before 1 January 2012 are subject to the transfer term of 20 years from their creation or these are transferred upon agreement with the public archives together with later archival records. § 68 (1) of the Internal Rules of the Court Office (Regulation no. 57 of the Minister of Justice of 22 December 2005) also provided for a term of transfer of 20 years after the establishment of archival records and the termination of related affairs.

[40] § 8 (2) ArhS; § 15 (4) of the Archival Rules.

[41] § 59 of TsMS and § 88 and 89 of HKMS.

[42] See, for example, the Opinion of the Advocate General of the Court of Justice of 3 December 2020 in case C-470/19, in which the Advocate General considers that the keeping of judicial records and the management of the court files clearly does not relate to administrative capacity, but is of a judicial nature (article 106). According to the Advocate General the fact that the proceedings have been closed does not make it less judicial (article 92). At the time of writing the article the Court of Justice has not yet adopted the decision in this case.

[43] Apparently, the possibility cannot be ruled out that the file in the case in which the petition for review is submitted has already been transferred to the National Archives. Such a situation is more likely to arise in a criminal matter in which the time for filing a petition for review is not limited to the maximum term, but is related only to the appearance of the basis for review (§ 368 of KrMS).

[44] Articles 13 (2)a), 14 (2)a), 15 (1)d) of GDPR, recitals 39 and 45.

[45] Recital 41 of GDPR clarifies that where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament, without prejudice to requirements pursuant to the constitutional order of the Member State concerned. However, such a legal basis or legislative measure should be clear and precise and its application should be foreseeable to persons subject to it, in accordance with the case-law of the Court of Justice of the European Union and the European Court of Human Rights.

[46] § 17 (1) of IKS.

[47] § 17 (4) of IKS. For anonymous information, see recital 26 of GDPR.

[48] § 33 (1) of the Internal Rules of the Court Office.

[49] RKTKm 17 December 2018, 2-10-55382, article 15.

[50] In administrative court proceedings the same term is prescribed for the submission of a petition for review (§ 241 (4) of HKMS).

[51] Explanation of § 33 of the draft explanatory memorandum to the draft Regulation of the Minister of Justice “Internal rules of the court office of the county, administrative and circuit court” (explanatory memorandum to the draft Internal Rules of the Court Office). Online: https://adr.rik.ee/jm/dokument/5468897 (19 April 2021).

[52] Annex 9, note 1, of the Internal Rules of the Court Office.

[53] § 33 (3) of the Internal Rules of the Court Office. Pursuant to the appraisal decision no. 128 of the National Archives of 23 November 2012, judgments and rulings, originals of decisions of all instances of courts from the court files of the first or second instance, are of archival value.

[54] Explanation of § 33 of the explanatory memorandum to the draft Internal Rules of the Court Office.

[55] Second sentence of § 27 (4) and § 33 (3) of the Internal Rules of the Court Office.

[56] Explanation of § 33 of the explanatory memorandum to the draft Internal Rules of the Court Office.

[57] Appraisal decision no. 5-1/17-51 of the National Archives of 31 October 2017 and its Annex 1. Online: https://www.ra.ee/arhiivihaldus/hindamisotsused/ (19 April 2021).

[58] Archiving of databases. National Archives. Online: https://www.ra.ee/arhiivihaldus/digitaalarhiivindus/andmekogude-arhiveerimine/ (19 April 2021).

[59] Same.

[60] Slides and video recordings of the information day of 24 January 2018 for archiving databases. National Archives. Online: https://www.ra.ee/andmekogude-arhiveerimise-infopaev/ (19 April 2021).

[61] Article 5 (1)a) of GDPR.

[62] § 36 (1), (3) and (5) of the Internal Rules of the Court Office.

[63] Explanation of § 36 (3) of the explanatory memorandum to the draft Internal Rules of the Court Office.

[64] Explanation of § 36 (3) of the explanatory memorandum to the draft Internal Rules of the Court Office.

[65] Article 15 of GDPR.

[66] § 59 of TsMS, § 88 and 89 of HKMS.

[67] See RKKKm 16 April 2020, 1-19-8262, article 43.

[68] RKKKm 16 April 2020, 1-19-8262, article 44; RKHKm 3 November 2016, 3-3-1-58-16, article 9.

[69] RKKKm 16 April 2020, 1-19-8262, article 47.

[70] Article 23 (1) (f) of GDPR allows Union or Member State law to limit the scope of the obligations of the controller and the rights of data subjects to protect the independence of the judiciary and judicial proceedings, provided that such limitation respects fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society. Article 18 of Directive 2016/680 also allows for exceptions to the procedure for exercising the rights of data subjects if those data are included in a judgment or in a file processed in the course of criminal proceedings. See also recitals 20 and 49.

[71] Explanatory memorandum to draft Act 679 (SE), explanation of § 2. Page 7.

[72] Article 55 (3) and recital 20 of GDPR; Article 45 (2) of Directive 2016/680, recital 80.

[73] Article 86 of GDPR, recital 154.

[74] Chapter 11 of the General Guidelines of the Public Information Act “Disclosure of information collected in criminal and misdemeanor proceedings”. Online : https://www.aki.ee/sites/default/files/dokumendid/avaliku_teabe_seaduse_uldjuhend.pdf (19April 2021).

[75] The Supreme Court referred to § 38 (4) of AvTS, according to which the head of an agency may decide to grant access to information classified as internal to persons outside the agency if this does not damage the interests of the state or a local authority.

[76] RKKKm 16 April 2020, 1-19-8262, article 46.

[77] Same, articles 36 and 38.

[78] § 44 and 45 of the Constitution of the Republic of Estonia, Article 11 of the Charter of Fundamental Rights of the European Union, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[79] See also RKKKm 04.12.2020, 1-17-9149, article 12 on the obligation to assess the existence of public interest in a case; RKHKo 23.03.2016, 3-3-1-85-15, articles 21–24, RKTKo 26.06.2013, 3-2-1-18-13, articles 14–16, RKTKo 18.02.2015, 3-2-1-159-14, articles 14 and 15; RKTKo 04.10.2017, 2-15-16007, article 16 on the definition of the public interest.

[80] Intention to develop the draft Act on Amendments to the Code of Administrative Court Procedure, Code of Criminal Procedure, Code of Civil Procedure and other acts (publicity of court proceedings). Online: https://adr.rik.ee/jm/dokument/7898689 (19 April 2021).

[81] § 29 of the Internal Rules of the Court Office.

[82] Pursuant to § 18 (2) 8) of the Archival Rules the terms for access to records, inter alia, will be entered to the act of transfer and receipt of archival records.