Data protection and the Church

The Church has for a long time - and in her own way - followed several criteria and adopted methods to protect the large amount of data stored in her archives.

Diocesan archives store all written matter which pertains to the temporal as well as spiritual affairs of the diocese. They are deposited and guarded under lock and key. Within these archives there is another section known as "the secret archives" in which documents of a very sensitive and confidential nature must be preserved secretly with scrupulous care. Church law requires that a catalogue of the documents contained within the archives is compiled, maintained and updated.

Even as far back as the first three centuries, bishops used to keep in their residences records of baptisms and other documents related to the sacraments. Later on, with the evolution of the bishops' curias, archives became a very useful tool for ecclesiastical administration. The diocese, together with parishes and other ecclesiastical entities, has its own archives which are normally divided into three categories: general, secret and historical.

Canon law distinguishes between documents that are public and others that are not, due to their sensitive nature. Confidential documents normally include matrimonial dispensations, registered secret marriages, documents relating to the loss of the clerical state, records of criminal cases and condemnatory sentences.

Where the status of a document is in doubt, it is for the diocesan bishop to determine which papers should be stored in the general or historical achieves and which are more suitable for the secret archives.

Sometimes, it may become necessary for the Church authorities to protect the ecclesiastical archives, especially the secret ones, from court procedures, the invasive strategies of governments or other interference from civil administrations.

Current Church law prescribes what should be done to ensure the safe custody of documents, when and how access may be allowed to them as well as when and to whom it should be denied - while insisting that all diocesan and parochial documents must be protected with the greatest care. Besides, it is a breach of the code to remove or destroy any documents contained in the archives.

In every Curia, a chancellor is appointed whose principal task is to ensure that the Acts of the Curia are gathered, arranged and safeguarded in the archives. With due consideration of all requirements, the chancellor, or archivist, is to permit the inspection of Acts or instruments to anyone legitimately requesting them from the files. Moreover, it is the right of interested parties to obtain personally, or through their proxy, an authentic copy or photocopy of documents which are public by nature and which pertain to the status of such persons.

In its zeal to comply with EU laws, the government recently enacted the Data Protection Act which spells out the duties of so called "data controllers" (those who determine the purposes and means of the processing of personal data) as well as the rights of the data subject (the person to which the information relates) and faculties of the data commissioner (who is responsible for ensuring compliance with the Act).

However, there are certain provisions that cause the Church more than a few problems. Section 14 of the Act appears to give the Church the right to process sensitive personal data - something she has been doing for years - but it then goes on to say: "sensitive personal data may be provided to a third party only if the data subject explicitly consents thereto". This latter sentence is capable of causing needless trouble for the Church as well as for many individuals who are, perhaps unwittingly, affected by it.

For example, the Church has hitherto given a copy of a marriage certificate to a spouse, on request, after a separation case. But it does not seem it can continue to do this if the other party named on that certificate decides to object.

Also because of this clause, nobody would be entitled to get their birth certificate without the consent of their parents.

There are also provisions which, unwisely, remove the Church's discretion when it comes to giving, or not giving, people information relating to themselves. I could mention many other examples, but the point I am trying to make is that the Church and its subjects are adversely affected by this Act.

Yet, there is one instance where the terms of this Act are deemed not to apply, since section 6 recognises the overriding right to freedom of expression and journalistic freedoms - though it proposes the drawing up of a suitable code of conduct applicable to journalists and the media to regulate the processing of any personal data.

This seems only right and proper. But, unfortunately, the rights and practices of the Church have for some reason been overlooked or were not given adequate consideration - in spite of concerns voiced at that time - when the Act was being drafted.

Applying the same kind of code envisaged under section 6 to data controllers who have the responsibility to act on behalf of Church entities and institutions could save many headaches and this anomaly should be remedied without further delay.

Mgr Cauchi is Bishop of Gozo.