A Very Important Decision of the Personal Data Protection Board on Lawyers' Access to Enforcement Files Without a Power of Attorney

(A brief assessment of the Summary of the Decision of the Personal Data Protection Board dated 20/05/2021 and numbered 2021/511- 512-513, published on 03.08.2021)¹

Subject of the Decision: The decision concerns the ex officio examination initiated by the Personal Data Protection Board (“Board”) following reports alleging that personal data were being accessed by unauthorised persons through lawyers’ inspection of any enforcement file they wished. In the reports it was alleged that it was unjustified for lawyers acting for creditors to apply to the enforcement distribution offices and obtain information on the enforcement files in which the debtors are creditors.

Defence: In its defence, the Ministry of Justice, as controller, stated that: (i) under the Enforcement and Bankruptcy Law No. 2004, a creditor wishing to collect his or her claim, or the creditor’s counsel, has the right, once the proceedings have become final, to make enquiries into all of the debtor’s assets, rights and claims, including the files in which the debtor is a creditor; (ii) under the Attorneyship Law No. 1136, a request by a lawyer or trainee lawyers to inspect case files without a power of attorney must be complied with by those concerned; and (iii) the matter reported was not contrary to Law No. 6698, having regard to the legal ground of being expressly provided for by law.

Furthermore, in the defence requested from the controller lawyer, the lawyer concerned likewise relied on Law No. 1136 as the basis.

The Board’s Decision and Conclusion: As a result of the examination carried out by the Board, it was decided that no action could be taken under Law No. 6698 in respect of the matters reported. The main conclusions established within the framework of this decision are as follows:

• Pursuant to Art. 85(1) of the Enforcement and Bankruptcy Law No. 2004, headed “Attachment of movable and immovable property”, the debtor’s movable and immovable property and his or her claims and rights may be attached in proceedings by way of attachment. Accordingly, it is possible to attach the claims that are the subject of enforcement files in which the debtor is a creditor.

• Pursuant to Article 46 of the Attorneyship Law No. 1136, headed “Pursuit of matters by a trainee or secretary, inspection of case files and obtaining copies from the file”, lawyers are authorised to inspect enforcement files without needing to submit a power of attorney. However, copies or photocopies may not be taken from the file without a power of attorney.

• Again, pursuant to Article 2 of Law No. 1136, headed “Purpose of the legal profession”, the relevant authorities are obliged to assist lawyers in the performance of their duties.

• Lastly, pursuant to Art. 8/a(6) and Art. 78(1) of Law No. 2004, UYAP enables lawyers acting for creditors to make enquiries about the debtor’s property, rights or claims, including the enforcement files in which the debtor is a creditor.

• Accordingly, lawyers are authorised to inspect case files and enforcement files without submitting a power of attorney, for the purpose of collecting a claim. The creditor’s counsel may carry out a personal data processing activity relating to the files in which the debtor is a creditor. He or she will carry out this activity on the basis of the condition that the processing is “expressly provided for by law”, pursuant to Art. 5(2)(a) of Law No. 6698.

• On the other hand, since the relevant authorities are under an obligation to assist lawyers in the performance of their duties, the staff working in enforcement offices must make this information accessible to creditors’ counsel. From this point of view too, therefore, the staff working in the enforcement office

will be able to carry out a processing activity by transferring personal data to the creditor’s counsel. This activity, too, will be carried out, within the framework of Art. 8(3) of the Law, on the basis of the condition that the processing is “expressly provided for by law”.

If the Board’s decision is to be assessed very briefly, I must say that it is an entirely apt decision in terms of both its reasoning and its outcome. The powers which lawyers derive from the Attorneyship Law in order to be able to carry out their work, and the fact that the administrative authorities enable these powers to be exercised, are matters of the utmost importance and value.

It should be noted, however, that the language used by the Board could also be read as meaning that the processing activity carried out by the creditor’s counsel is limited to files in which the debtor is a creditor and to the purpose of collecting a claim. For the Board examined only the processing carried out by the creditor’s counsel; it gave no explanation regarding lawyers’ inspection of any file they wish at the enforcement office. I do not think, however, that the absence of an examination in this respect was motivated by any intention to impose a limitation. Quite the contrary: had such an examination been undertaken as well, a limitation would have had to be drawn, yet it would not have been possible to determine the scope of that limitation. In essence, I think that with these decisions the Board has, quite rightly, very clearly forestalled reports and objections concerning the ability of lawyers and trainee lawyers to inspect any kind of file at enforcement offices.