Recurring: Particular

Recurred resolution: R/0694/2023

In exercise of the right of access to public information, the Ministry of the Interior was requested to provide information on the measures implemented by penitentiary institutions for the detention of a person who has committed a crime who, according to press reports, has initiated a procedure for changing his/her gender in a penitentiary, indicating whether he/she has been admitted to a women ' s penitentiary.

The Ministry refused access because it considered that the provisions of article 15 LTAIBG were applicable, in relation to the provisions of Instruction 7/2006 of 9 March 2006 of the General Secretary of Penitentiary Institutions on the Penitentiary Integration of Transsexual Persons.

The Council dismisses the claim considering undeniable that the information required contains data related to sexual orientation, which belong to the special categories of personal data regulated in Article 9 GDPR and national legislation, and since the interested party has not granted express consent for this purpose nor is there a rule with the rank of law that protects it, the treatment consisting in the granting of access to them would be prohibited in our legislation.