#55: Official secrecy

The temptation to abuse power hides around many corners. Temptation can exist based on one’s own gain. But simple curiosity can also be a reason, as a recent Supreme Court judgment shows. Civil servants have a form of power over citizens, in the sense that they can gain access to confidential information while they are not allowed to see it. These civil servants are subject to a statutory duty of confidentiality. A violation of this confidentiality is punishable under certain circumstances. The Supreme Court has set some boundaries.

Article 272 of the Dutch Penal Code makes the violation of official secrecy a criminal offence. The article reads: “Anyone who intentionally violates any confidentiality of which he knows or should reasonably suspect that he is obliged to keep it by virtue of office, profession or statutory regulation or by virtue of his previous office or profession shall be liable to a term of imprisonment not exceeding one year or to a fourth category fine”.

The case that was pending before the Supreme Court revolved around a guard of the Military. He had looked up information of family and friends about criminal investigations and personal data in the system of the police and the Royal Netherlands Marechaussee. Not for the performance of his duties, but for private use. The Court judged that the accused confessed that the looked up this information for personal use and sentenced him with 20 hours of public service. The Supreme Court concluded that a breach of official secrecy is in place when a third party is informed about this information. The Supreme Court judged:

“It follows from the Parliamentary history of the law that the ‘breach’ of a secret within the meaning of section 272 of the Penal Code must be interpreted as the disclosure of secret information to another person who is not authorized to take cognizance of this information. In view of this, the opinion of the court of appeal that the accused has violated his official secrecy by disclosing secret information to himself, shows an error of law”.

The Supreme Court refers the case back to the Court of Appeal so that the case can be tried again. Based on this judgement we can conclude that criminal law cannot be used if a person who, by virtue of his position, has access to private data of citizens and cannot curb his curiosity. As long as secrecy is kept from others, the breach of official secrecy cannot be proven. As soon as this information is provided to others, a criminal intervention can take place.

Of course this does not mean that no disciplinary measures can or should be taken against this kind of curiosity. We believe that government officials should not abuse their power in any way and should respect personal data. But to breach official secrecy you should share a secret with a unauthorized third party to be penalized in criminal law.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

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