10 June 2012
On 27 June 2011, the Supreme Administrative Court of Bulgaria quashed аs unlawful a Decision of the Data Protection Commission (“the Commission”) dismissing a complaint against the refusal of a Bulgarian hospital to provide medical records. New Balkans Law Office has been acting for T. F., the Applicant. The Supreme Administrative Court ordered the Commission to substitute for the quashed decision a new decision ordering the hospital to effect full disclosure.
In previous proceedings before it, the Commission had denied that the hospital had acted as a data controller in relation to its patients’ records, within the meaning of the Bulgarian Personal Data Protection Act (“PDPA”). Consequently, the Commission had proceeded to deny that the PDPA imposed obligations on the hospital to ensure the exercise of the Applicant’s usual rights under art. 26 of PDPA .
The hospital had earlier refused requests to provide the medical records twice, claiming invalidity of the requests to it, but without specifying. The Supreme Administrative Court found that after two express but unreasoned refusals to provide the medical records, the arguments of the hospital as to irregularity were spurious. A request for disclosure could be either valid or invalid, but with valid requests capable of being defective. The fact that the request had been refused twice indicated that the data controller had accepted its validity, but had found it defective. If it had been defective, the correct procedure for the data controller should have been to request the removal of the defects, following which the data controller should have considered the request on its merits.
The failures to instruct the Applicant individual how to remove the supposed irregularity and to provide the file, were found to have constituted violations of the Applicant’s rights under art. 26 PDPA and the following.
Bulgarian data protection and the assistance granted by the regulator – the Commission – is still in a nascent state. Applications by patients for the disclosure of their medical records in particular are often treated timidly, partly because of a domestic paternalistic tradition in medical care. The sound decision of the Supreme Administrative Court is thus a welcome addition to the jurisprudence in this area.
Yoana Ivanova, an associate, and Svetlyo Ivanov, of counsel, represented the Applicant (on her own behalf and on the behalf of her infant child).
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