"Children of the country road"
The work of the aid organization "Children of the country road" kept the public busy in the 80s. After the events, the question arose as to what extent those affected and third parties (e.g. for research purposes) should be given an insight into the very extensive files of the aid organization. Although the majority of the files are not within the scope of the DSG, we have responded to inquiries regarding the problem of an inspection regulation for data subjects and third parties.
From 1926 to 1973, the Pro Juventute Foundation ran the aid organization "Children of the country road", with the aim of "Vagantität" by separating those children from their parents. Over 600 children were placed with foster parents, in children’s homes, orphanages, psychiatric clinics and prisons. The aid agency was supported by the cantonal authorities, but also by the federal government. Comprehensive, in some cases very sensitive and particularly worthy of protection data was collected about the victims and their relatives. In 1973, the relief agency ceased to operate. From 1985, reparation efforts were initiated towards the persons concerned, which led to the establishment of two commissions. The file committee "Children of the country road" examined for the attention of the cantons concerned whether and to what extent the data subjects could be granted access to their files. The fund commission dealt with the question of the compensation of those affected. As part of the work of the Files Commission, which was dissolved in 1993, around 240 people were given access to their files.
In order to clarify the responsibilities as well as with a view to redressing the injustice suffered by the victims, the victims themselves, the public, but also Pro Juventute and the federal government demanded a scientific analysis of what happened. This raised the question of the extent to which those affected have a say in the design of this review and – relevant to data protection law – whether the files of those affected may be inspected without their consent for research purposes.
Since the cantons have control over the files, the DSG does not apply in principle. Nevertheless, we were asked to comment on the question of inspection for research purposes and on a general inspection regulation for those affected, both with regard to the files of Pro Juventute and with regard to the newly created files of the Files and Fund Commission.
We gave several statements on the whole complex of questions. However, as far as the DSG does not apply (i.e. regarding the files that are subject to the cantons’ power of disposal), these are non-binding.
For the most important question, namely an inspection regulation for the persons concerned and for research purposes and the handling of the right to rectification, the following resulted:
Although the various file types are under the power of disposal of various organs and are therefore also subject to different legal norms, it is desirable in the interest of those affected to have a uniform inspection system, for which only one authority is responsible. Contrary to the wishes expressed by various parties, we cannot be the authority responsible for granting the right of inspection, otherwise we would conflict with our supervisory role in the data protection area. In our opinion, the inspection regulation itself should be based on the regulation on the right to information made in the Data Protection Act. It should specify in detail who is authorized to inspect, to what extent inspection is granted and for what reasons the inspection can be restricted in individual cases.
Since the data subjects have repeatedly pointed out that they require a right to have a say or a decision-making authority regarding the access to their files by third parties for research purposes, their tacit consent cannot be assumed. Therefore, prior to viewing the files of data subjects for research purposes, their express consent must be obtained. This consent could only be waived on the basis of an explicit regulation in a formal law. It must also be clarified whether third parties can also be granted access for purposes other than research. Such a right of inspection should only be granted if it is ensured that none of the data subjects is alive or could interfere with the inspection. The blocking period of 35 years provided for in Article 7 of the regulations for the Federal Archives should not be sufficient for this.
The data subject has repeatedly requested, in part, the destruction of the incorrect data contained in the files and in part simply their correction. According to the Data Protection Act, every person who processes data must ensure that this data is correct. Any data subject can request that incorrect data be corrected. There is a claim to the destruction of incorrect data and their replacement with correct data insofar as the incorrect information can harm the data subject in the case of future data processing. The DSG does not provide for the files to be handed over to those affected, some of which are required.
Apart from the destruction of the entire file, the interest of those affected in the clarification of their personal past and the public in the historical reappraisal of the action "Children of the country road" would run counter to this, the destruction of the "false" Data is out of the question for practical reasons. In addition, most of the incorrect data are negative value judgments (qualification of the person concerned as idiotic, reluctant to work, etc.). Although these are very painful for those affected and have done them a lot of damage in the past, in the future they could only do them harm in the context of research if the person entrusted with the research cannot sufficiently distance themselves from these value judgments.
Therefore, in accordance with Art. 15 Para. 2 VDSG, which provides for a note about the contentious or incorrect nature of the data for personal data deposited with the Federal Archives, the data subjects should be given the opportunity to make a correction to the files in which attention is drawn to the invalidity of these value judgments. In this context, it is probably just as important to explicitly demand that these value judgments be invalidated and that the objective facts be presented in future research.
In our opinion, it is advisable to deal with the whole complex of questions in the files of the relief organization "Children of the country road" to regulate in a formal law to ensure that a regulation is found that safeguards the interests of those affected and that they have the opportunity to influence the protection of their interests in a constitutional legislative act.
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